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Full text of "United States Court of Appeals For the Ninth Circuit"

F2302 



San Francisco 

Law Library 

436 CITY HALL 



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n'X ^ 



No. 11514 

Winitth ^tateg 

Circuit Court of Appeals 

Jfor tf)e i^intl) Circuit. 



COLGATE-PALMOLIVE-PEET COMPANY, 

Petitioner, 
vs. 

NATIONAL LABOR RELATIONS BOARD, 

Respondent, 
and 

INTERNATIONAL CHEMICAL WORKERS UNION, A.F.L., 
et al., Intervenors, 

and 

WAREHOUSE UNION LOCAL 6, INTERNATIONAL 
* LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 

(CIO), Intervener, 

and 

NATIONAL LABOR RELATIONS BOARD, 

Petitioner, 

vs. 

COLGATE-PALMOLIVE-PEET COMPANY, 

Respondent. 



tKrangcript of Eetorti 

In Three Volumes 

Volume III JUN2 1947 

Pages 667 to 987 

Upon Petition for Review, and Petition to Enforce Order .jl tDi^ 
of the National Labor Relations Board. 

Rotary Colorprint, 870 Brannan Street, San Francisco 5-22-47 — 50 



Digitized by tine Internet Arciiive 

in 2010 witii funding from 

Public. Resource. Org and Law.Gov 



http://www.archive.org/details/govuscourtsca9briefs2460 



No. 11514 

Mnitth States 

Circuit Court of appeals! 

Jfor tije Minf^ Circuit. 



COLGATE-PALMOLIVE-PEET COMPANY, 

Petitioner, 

vs. 

NATIONAL LABOR RELATIONS BOARD, 

Respondent, 
and 

INTERNATIONAL CHEMICAL WORKERS UNION, A.F.L., 

et al., Intervenors, 

and 

"WAREHOUSE UNION LOCAL 6, INTERNATIONAL 

LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 
(CIO), Intervenor, 

and 

NATIONAL LABOR RELATIONS BOARD, 

Petitioner, 

vs. 

COLGATE-PALMOLIVE-PEET COMPANY, 

Respondent. 



l^rangcript of i^ecorb 

In Three Volumes 
Volume III 

Pages 667 to 987 

Upon Petition for Review, and Petition to Enforce Order 
of the National Labor Relations Board. 

Rotary Colorprint, 870 Brannan Street, San Francisco 5-22-47—50 



.V. L. R. B. et al 667 

(Testimony of Clifford A. Altman.) 

Q. Would it have been in my office last 
Thursday'? A. That was the place. 

Q. All right, sir. At what time do you usually 
arrive at work, Mr. Altman? 

A. Around seven-fifteen in the morning. 

Q. On July 30 did you arrive at your office about 
that time? A. Yes, sir. 

Q. Did anything unusual occur during the course 
of the day? 

A. In the afternoon something unusual occurred, 
yes, sir. 

Q. Could you place the time ? 

A. Aromid 1 :45. 

Q. Will you relate this unusual incident? 

A. Four gentlemen from the union came into my 
office and handed me a letter stating that the men 
noted in that letter were not in good standing with 
the union, and that, therefore, I must dismiss them. 

Q. Before we go into that, let me date the events 
chronologically, Mr. Altman. 

Were you at the plant on Saturday, July 28, 
1945? A. Yes, sir. 

Q. There has been some testimony here about a 
notice that was posted at the plant at that tim,e. Do 
you have any recollection of such a notice? 

A. Yes, sir. 

Q. Can you state in substance what was stated 
in the notice? A. In that notice? 

Q. Yes, please. 

A. Well, the notice said that a meeting of the 
Welfare Association, of the Employees of the Col- 



668 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 
gate-Palmolive-Peet Company was going to be held. 
I have forgotten the time and place, but I guess that 
is a matter of record. 

Q. Yes, that is sufficiently in the record. That 
is quite all right, Mr. Altman. 

Did you do anything, were you caused to do any- 
thing by the reading of that notice ? 

A. No, sir. 

Q. Did you inform any of your fellow 
executives ? 

A. I told Mr. Wood about it, yes, sir. 

Q. How did you come to tell Mr. Wood about 
it? [568] 

A. He called me on the phone and asked me if 
anything unusual had happened, and I related this 
incident. 

Q. Did Mr. Wood have any commentary to 
make ? 

A. Nothing in particular that I remember. 

Q. All right, sir. Let's go back then to July 
30. And you were saying that four gentlemen came 
to your office, and what did they do ? 

A. They handed me the letter, the contents of 
which I have already stated. 

Do you wish me to repeat it? 

Q. Yes, if you will, please. 

A. As I remember it, the letter stated that "The 
following men were no longer in good standing with 
the union," therefore we must dismiss them imme- 
diately from our employ. 

Q. Who handed you the letter? 



N. L. R. B. et al 669 

(Testimony of Clifford A. Altman.) 

A. I believe it was Paul Heide. 

Q. Is it your testimony that they are officers 
of the CIO union? 

A. That was my understanding, yes, sir. 

Q. Yes. What did you do when you were 
handed that notice? By the way, before we get 
into that, who were named in that notice? 

A. Frank Marshall, Harry Smith, Dave Luch- 
singer, Sanford Moreau, and Clyde Haynes. 

Q. I hand you Board's Exhibit 3 and ask you 
to look at it. [569] A. Ask what? 

Q. Ask you to look at it. It purports to be a 
copy, I think, of the notice you received. 

A. (Examining document.) 

Trial Examiner Ruckel: That was the notice? 

The Witness: The notice, yes, sir. 

Q. (By Mr. Hecht) : That is the copy of the 
notice you received? A. Yes, sir. 

Q. What did you do after you had been handed 
that notice? 

A. Well, of course, I was much upset by it, and 
I immediately went over to Mr. Railey's office to 
confer with him. 

Q. And what was the outcome of your confer- 
ence with Mr. Railey? 

A. We came back to my office to communicate 
with these gentlemen. 

Q. And what happened? 

A. Well, as you understand, Mr. Railey was the 
spokesman, and he voiced our sentiment that we 



670 Colgate-Pahnolivc-Pect Co. vs. 

(Testimony of Clifford A. Altman.) 
had no reason, so far as we knew, for dismissing 
these men, and they immediately called attention 
to the fact that according to our contract if they 
were not in good standing they could not work 
there, and our reasoning with them was a protest 
that we had no reason to dismiss these men. 

Q. And what happened after that*? [570] 

A. Well, the spokesman on the other side said, 
*'Well, if you don't want to dismiss them bring 
them in here and we will dismiss them." 

Q. And did you bring the men in"? 

A. I did, or I asked them to come in, and they 
came. 

Q. And what else occurred f 

A. I think it was Mr. Heide handed each one 
of them a typewritten piece of paper. These gentle- 
men read it over, and without comment they crum- 
pled the papers in their hands, stuffed them in their 
pockets, and walked out. 

Q. And did the union representatives remain in 
your office? A. For a little while, yes. 

Q. Was there any further conversation with 
them "? 

A. Well, there was some further conversation, 
not at great lengths, but I do not remember the 
content of it now. 

Q. Did you have an opportunity of seeing what 
was on the pieces of paper that were handed to the 
five men? A. No, I never saw them. 

Q. Have you ever seen it? A. No, sir. 



N. L. E. B. et al 671 

(Testimony of Clifford A. Altman.) 

Q. Did the union officials make any further re- 
quests of you? 

A. I do not remember of anything further right 
at that time. [571] 

Q. That was the end of the matter, they walked 
out, and you went back to your duties? 

A. That is right. 

Q. Were you at the plant on July 31, 1945? 

A. Yes, sir. 

Q. Anything unusual occur on that date? 

A. Yes, sir. 

Q. Will you please relate to the Examiner what 
occurred ? 

A. Well, there were four men that called on me 
and 

Q. (Interposing) : Before you go any further, 
will you name the persons, if you know their names ? 

A. Mr. Sherman, Mr. Lonnberg, Olsen and 
Thompson. 

Q. Were they employees at the plant? 

A. Yes, sir. 

Q. All right. Will you relate what occurred 
between you and these gentlemen? 

A. They asked me to allow the men who had 
been sent out of the plant the day before to return 
to work. 

Q. And what did you do upon having that re- 
quest made of you? 

A. My reply was that these men could not be 
put to work by us until they had answered the 



672 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 
charges made by the union, and they had been re- 
stored to good standing. 

Q. And was that the end of the matter? 

A. They left my office at that time, yes. [572] 

Q. Did you communicate this event to either 
Mr. Railey or Mr. Wood"? 

A. I can't remember the exact chronological or- 
der, but shortly thereafter these men went to Mr. 
Railey 's office and talked to him, and in the mean- 
time the officers of the union came into my office, 
and I believe it was at that time they handed me 
a letter saying that the men I have just mentioned 
were also no longer in good standing with the com- 
j)any and they must be dismissed. 

Mr, Hecht: Pardon, Mr. Royster. Did that go 
into evidence? 

Mr. Royster: I am not sure that it did. 

(Mr. Royster handed Mr. Hecht a docu- 
ment.) 

Q. (By Mr. Hecht) : I hand you a photostatic 
coi)y of a letter written on the stationery of the 
Warehousemen's Union dated July 31, 1945, and 
addressed to the Colgate-Palmolive-Peet Company, 
attention of Mr. C. A. Altman, signed by Paul 
Heide, Vice President. 

Will you look at it? 

A. That is the document. 

Q. That is a true copy of the document that was 
handed you? 

A. As I remember it, yes, sir. 



N. L. R. B. et al 673 

(Testimony of Clifford A. Altman.) 

Mr. Hecht: Yes. May it be marked as Respon- 
dent's next exhibit in order? [573] 

(Thereupon the document above referred to 
was marked Respondent's Exhibit No. 16 for 
identification.) 

Mr. Edises: May I see if? 

Mr. Hecht: Yes (handing document). 

Mr. Rowell: Let me see it. 

(The document was handed to Mr. RowelL) 
Trial Examiner Ruckel: Are you offering it? 
Mr. Hecht: We otfer it in evidence, Mr. Exam- 
iner. 

Trial Examiner Ruckel: Any objection to it? 
Mr. Royster: No objection. 
Trial Examiner Ruckel: It will be received. 
(The document heretofore marked Respon- 
dent's Exhibit No. 16 for identification was re- 
ceived in evidence.) 

Q. (By Mr. Hecht) : Mr. Altman, when the 
four men first walked into your office, and prior to 
the time that you were handed that letter from the 
ILWU, did Mr. Thompson or Mr. Sherman or Mr. 
Lonnberg or Mr. Olsen or someone speaking for 
them, tell you if they were going to back up their 
demand in some manner? 

A. I don't recall just what they did say. 

Q. You don't recall? A. No. 

Q. I see. 

A. Except I said that they requested us to put 
the other men back, didn't I, in my former state- 
ment? [574] 



674 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 

Q. Yes. A. Yes. 

Q. Well, when the union then came in, what did 
you dot A. I sought help. 

Q. And handed you that letter? 

A. I sought help. I went to Mr. Kailey. 

Q. And did you get help? 

A. Well, I went over to Mr. Railey's office and 
showed him the communication, and when I got 
to Mr. Railey's office the four men mentioned in 
the message were there. 

Q. You mean Messrs. Thompson, Sherman, 
Lonnberg and Olsen? A. That is right. 

Q. Yes. And what happened? 

A. Well, while we were conversing there one 
of the gentlemen from my office called on the phone 
and said they wanted action immediately on this 
request. 

Q. Who wanted action immediately on what 
request, Mr. Altman? Will you elaborate? 

A. The officers of the union who had handed me 
this request to dismiss these gentlemen, Sherman, 
Lonnberg, Olsen and Thompson, and they did not 
wait for a reply. They came right over and we 
invited them into the office. 

Q. Whose office? 

A. Mr. Railey's office, w^here the other men 
were. 

Q. Yes. Y/hat followed after their entry into 
that office? [575] 

A. Well, I don't recall the exact way that they 
all got together, but in a few minutes the five men 



N. L. R. B. et al 675 

(Testimony of Clifford A. Altman.) 

who had gone out the day before — do you want 

their names'? 

Q. Yes, will you name them? 

A. Marshall, Smith, Luchsinger, Moreau, and 
Haynes, and the four 

Q. (Interposing) : Will you now name the 
union officers who arrived at the second demand for 
dismissal? A. Mr. Lynden, Mr. Duarte 

Mr. Edises (Interposing): Lynden? 

The Witness: Lynden, that is right. Mr. Gon- 
ick, and I believe Mr. Gleichman was there, and 
Mr. Lynch. 

Q. (By Mr. Hecht) : And did any conversa- 
tion ensue between the persons assembled there? 

A. Yes, sir, there was some conversation there. 
The spokesman for the union said that the men 

Q. (Interposing) : Who was he, if you remem- 
ber? 

A. Mr. Lynden. Lynden said these men cited 
would have to stand trial, and if they were cleared 
of the charges that had been made against them, 
why, they would be allowed to return to work, and 
also the union said they would pay them for the 
time they lost if they proved that they were inno- 
cent. 

Q. Did you inquire as to the nature of the 
charges made against these men? [576] 

A. Well, we did at various times ask what the 
charges were, and the reply was that they were not 
in good standing and they would have to stand 
trial. 



676 Colgate-PalmoUve-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 

Q. That is as much information as you got? 

A. That is right. 

Q. Did any further colloquy take place? 

A. Well, the gist of the conference was that we 
would lil^e to have the employees returned to work, 
and if they had their differences that they should 
work them out some other place than our place of 
business. 

Q. Yes. 

A. And the officers of the union cited above 
suggested that these men who had been designated 
as not being in good standing be requested to leave 
the plant. 

Q. Were they so requested? Did you request 
them to leave the plant? 

A. I do not recall that I requested them in so 
many words. The upshot was that they went out in 
the plant 

Trial Examiner Ruckel (Interposing) : Who is 
^'they"? 

The Witness : These nine men from the working 
side of the union. 

Q. (By Mr. Hecht) : Perhaps it will aid you, 
Mr. Altman, and it might aid the Examiner, to call 
them the five Stewards and the five committeemen. 
I think that is a good description. [577] 

A. Yes. They went out in the plant and re- 
mained around for a short time, and then the five 
Stewards and the four committeemen, as I recall 
it, left, and also the Business Agents left. 

Q. You mean the officers of the union? 



N. L. E. B. et al 677 

(Testimony of Clifford A. Altman.) 

A. The officers, yes. 

Q. That ended that particular incident? 

A. Yes, sir. 

Q. Anything else occur during that day? 

A. Well, there were rumors flying around, and 
the upshot of it was that when the employees went 
out of our plant at noon for the lunch period they 
did not return to work at 12:30, that is, the great 
majority. There were a few who remained on the 
job all day, but the great majority went out. 

Q. When did this '* great majority" return to 
work? 

A. Well, the great majority returned to work 
on the morning of August 3. 

Q. Did you plant operate during that period? 

A. In a limping way, yes, sir. 

Q. And at that time did you know that the 
ILWU had a pledge not to strike during wartime? 

A. Yes, sir. 

Mr. Rowell: That is immaterial, whether he 
knew it or not. [578] 

Mr. Hecht : It is very material. 

Trial Examiner Ruckel: He may answer. 

Q. (By Mr. Hecht) : Your answer was *'Yes"? 

A. Yes, sir. 

Q. And there was a stoppage of approximately 
two or three days at your plant ? A. Yes, sir. 

Q. Did you at any time between July 30 and the 
3rd of August learn from any source, or did you 
get any information from any source as to what 



678 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 

was alleged to be the reason for this controversy 

and this work stoppage'? 

A. Well, nothing definite, no official notice, if 
that is what you mean. 

Q. Well, in the press or elsewhere *? 

A. Well, I read the articles in several of the 
daily press, yes. 

Q. And what did you learn from the press"? 

A. Well, there was an accusation of racial dis- 
crimination seemed to be the main topic. 

Q. Was there any mention in the press as to this 
IWLU strike pledge? 

A. I don't recall that in connection with this 
article. 

Q. Do you know against whom this accusation 
of discrimination was leveled in the papers'? 

Mr. Rowell: Well, now, that is going to be ex- 
cepted to. [579] 

Mr. Hecht: I am asking for the truth or falsity 
of the statement. 

Trial Examiner Ruckel : I understand. He may 
answer. 

A. Well, the statement was somewhat non-clear, 
I thought, as to who was the discriminating party. 

Q. (By Mr. Hecht) : But you knew that there 
were charges of that discrimination? 

A. Yes, sir. 

Q. Did you, during this period, following the 
period of August 3, did you get any communica- 
tion of any type from either the committeemen or 
the discharged stewards'? A. Get any whaf? 



N. L. R. B. et al 679 

(Testimony of Clifford A. Altman.) 

Q. Any communication, were you called on the 
X^bone by anyone? A. Not tbat I recall. 

Q. Didn't Mr. Sherman call you on the phone, 
making some inquiry about his coming to work*? 

A. That is right. 

Q. Will you relate that? 

A. Mr. Sherman called me one evening — I don't 
remember the date, but he asked me if I wanted 
him to return to work. And I called his attention 
to the fact that the union had said he was not in 
good standing, and until he cleared those charges, 
why, he was not eligible for employment. 

Q. Yes. What did Mr. Sherman say to that? 

A. He said, "O.K." 

Q. That ended that conversation? 

A. That ended it. 

Q. Mr. Altman, it has been testified here that 
on August 25 — is it August 25? No. Pardon me. 
I withdraw that question. 

Did anything concerning the nine men, to-wit, 
the five Stewards and the four conunitteemen, oc- 
cur on or about August 17 ? 

A. I don't recall the date. It may be that is the 
date they came to the plant and presented them- 
selves for work. 

Is that the date ? 

Q. That is the incident to which I have refer- 
ence. 

Will you relate to the Examiner just what oc- 
curred in connection with that? 

A. They came to our plant and presented them- 



680 Colgate-Pahnolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 
selves for work, and Mr. Wood, the man who has 
charge of our labor relations, talked to them. 

Q. What was that conversation or that talk? 

A. Well, the gist of it was that until they were 
cleared through the union, why, we couldn't put 
them to work. 

Q. Did any one of the nine men or their spokes- 
man state to Mr. Wood or to you the reason for 
their being in bad standing wdth the ILWU? 

A. Did they state their reason? [581] 

Q. Yes. 

A. Or ask their reason? 

Q. No. Did they state any reason for being in 
bad standing with the ILWU? 

A. Not so far as I heard. 

Q. I see. Did they deny that they were in bad 
standing with the ILWU? 

Mr. Rowell: That is objected to. There is no 
testimony that they were accused of 

Trial Examiner Ruckel: He may answer. 

A. Well, at that time I don't remember that 
they made any statement one way or the other 
about that. 

Q. (By Mr. Hecht) : They made no statement. 
Going forward to August 31, Mr. Altman, it has 
been related here that prior to seven o'clock A. M. 
of that day there was some sort of a glomeration 
of men, described variously as a picket line, in 
front of the plant. 

Do you recall that incident? 

A. Do you mean August or July? 



N. L. R. B. et al 681 

(Testimony of Clifford A. Altman.) 
Q. I think it is August, Mr. Altman. 

A. Well, maybe if you refresh my memory — 
I was thinking of the July 31 — the stopping of 
the men to check their books, I imderstood, al- 
though I was not 

Q. (Interposing) : I think you are 30 days off 
on that, Mr. Altman. Maybe this will refresh your 
recollection. It, I [582] think, was one or two days 
prior to the removal from emplo}Tiient of about 17 
or 18 of your employees. 

A. Well, if that is the case, I remember of them 
stopping them at the gate, yes, and checking. 

Q. Who was doing the stopping, if you know"? 

A. The ofHcers of the imion. 

Q. Can you name some of those officers? 

A. Well, I believe Mr. Gleichman was there, 1 
believe Mr. Gonick was there. 

Q. This stopping, as you describe it, for the pur- 
pose of checking books, where did it occur? In- 
side or outside your plant? 

A. At first it was just outside the gate. 

Q. I mean, did this thing — was this thing finally 
brought into your gate? 

A. Some of it, yes, sir. 

Q. How did that come to pass ? 

A. Well, I believe there was a protest by the 
Police Department that they were blocking the 
street, so then they came inside. 

Q. Yes. Let me ask you this: Has it been the 
usual custom at the Respondent's plant to permit 



682 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altmaii.) 
representatives of the ILWU to come in to check 
such tilings as dues books, etc? A. Yes, sir. 

Q. That is a custom of many years standing? 

A. Yes, sir. 

Trial Examiner Ruckel: And to collect dues? 

The Witness : Yes, sir. 

Q. (By Mr. Hecht) : Do you know a young 
lady by the name of Ophelia Reyes, Miss Ophelia 
Reyes? A. Well, I know the name. 

Q. You know the name? A. Yes, sir. 

Q. Do you recall someone by that name being 
employed at the plant? A. Yes, sir. 

Q. On the day in question of this picket line, or 
whatever you want to call it, did you have occasion 
to walk outside the plant, the fence surrounding 
the plant, and walk down the block? 

A. I believe I did walk down a short way there, 
yes, sir. 

Q. Do you recall approaching a group in which 
Miss Reyes, it has been testified, was in, and being 
asked why they were not permitted to come into 
the plant? 

A. I do not remember that incident. 

Q. Do you recall at this moment some officer 
of the union, Business Agent (maybe Mr. Gleich- 
man) stated in your presence that they were not 
permitted to enter because they were AF of L ad- 
herents or participants? 

A. I never heard any such statement at all. [584] 

Q. Did you stop to talk to anybody in the course 
of your walk outside the plant ? 



N. L, B, B. et al 683 

(Testimony of Clifford A. Altman.) 

A. I do not remember of conversing with any- 
body there. 

Mr. Eo^vell : I move to strike the answer that he 
didn't make any such statement, Mr. Examiner. 

Trial Examiner Ruckel: I beg your pardon? 

Mr, Rowell: His memory is apparently a blank 
on that occasion. I move to strike the answer, that 
he never heard any such statement. He can't even 
remember the occasion. 

Trial Examiner Ruckel: He gave two answers, 
and in one he said he recalled making such state- 
ment. 

Is there some inconsistency, you mean? 

Mr. Rowell: No. He says he did not hear a 
statement made by Mr. Gleichman that these men 
were not being allowed in because they were A F 
of L. He remembers that definitely because 

The Witness: I did not hear it. I did not say 
it was not made. 

Trial Examiner Ruckel: What is your point? 

Mr. Rowell: He has testified he has no memory 
as to the occasion. All he can testify is that he 
doesn't recall whether a statement was made or not. 

Mr. Edises: Mr. Examiner, I submit the record 
speaks for itself. 

Trial Examiner Ruckel : I don't follow that. [585] 

Mr. Edises: I beg your pardon. The record 
speaks for itself. 

Trial Examiner Ruckel : Go ahead. 

Q. (By Mr. Hecht) : You didn't hear any such 
statement, is that your testimony, Mr. Altman? 



684 Colgate-Pahnolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 

A. That is my testimony, yes, sir. 

Q. Moving forward to August, or rather, Sep- 
tember 1, 1945, Mr. Altman, did anything extraordi- 
nary occur at the plant on that day? 

A. What date? 

Q. September 1, 1945. 

What is the date of that, when all those 18 

Mr. Royster (Interposing) : That was the first, 
September 1. 

Q. (By Mr. Hecht) : September 1, yes? 

A. Yes, sir, we received another communication. 

Q. From the union? A. Yes. 

Q. Did you receive it? A. Well, I saw it. 

Q. I will show you Board's Exhibit No. 10, the 
photostatic copy of a letter on ILWU stationery, 
and ask you to look at it. 

A. (Examining document) : I saw it, yes, sir. 

Q. Will you testify as to whether that is a true 
copy of [586] the letter received by you? 

A. It is. 

Q. It is directed to your attention, is it not? 

A. Yes, sir. 

Q. What did you do with that letter? Did you 
refer it to Mr. Wood ? 

A. Well, Mr. Wood and Mr. Railey. 

Q. And what happened ? 

A. Well, later on in the day — as I recall it, this 
came in in the morning. Later on in the day we 
called these men cited in the letter into Mr. Riley's 
office and had some conversation with them. 

Q. Did you speak? A. No, sir. 



N. L. R. B. et at 685 

(Testimony of Clifford A. Altman.) 

Q. Did Mr. Wood speak? 

A. Oh, maybe an occasional word or so, but the 
main spokesman was Mr. Railey. 

Q. And what did Mr. Railey say? 

A. Well, his statement was in the form of 
expressing his — I can't find the word — regret at 
having to comply with this request. It was not only 
affecting the people cited in the missive, but it was 
affecting the company. And, as I recall it, his 
remarks were in the form of commiserations in 
connection with the situation. 

Q. What other company representatives were 
present at that [587] time? 

A. From the management end? 

Q. Yes, sir. 

A. Mr. Wood, Mr. Railey, Mr. Stanberry, Mr. 
Carter, and myself. 

Q. Did Mr. Carter or Mr. Stanberry say any- 
thing? A. I do not recall that they did. 

Q. I will ask you the specific question, whether 
you heard Mr. Railey at that time and place say 
*'We didn't want you in the first place to join a 
union, and we fought you. Now you must take the 
consequences"? 

A. I did not hear him make that statement, and 
it is very unlike the gentleman. 

Mr. Rowell: I ask the last part of the answer 
be stricken. 

Trial Examiner Ruckel: It may be stricken. 

Q. (By Mr. Hecht) : Did you hear any state- 



686 Colgate-Pahnolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 

ment that might be in substance similar to tliat 

made by Mr. Railey? A. No, sir. 

Q. Did you hear either Mr. Wood or Mr. Railey 
say to anyone present at the time, "If you had not 
worn the A F of L buttons you Avouldn't be in the 
mess you are in"^ A. No, sir. 

Q. You are positive of that? 

A. Yes, sir. [588] 

Mr. Hecht : I guess that is all. 

Q. (By Mr. Edises) : Mr. Altman, during the 
entire period of the war, with the exception of this 
work stoppage of July 31 to August 3, was there 
any strike or other interruption of production at 
your plant by the ILWU, or members of the 
ILWU? A. No, sir. 

Mr. Edises: That is all. 

Cross Examination 
By Mr. Royster : 

Q. How long have you been at the Berkeley 
plant, Mr. Altman? 

A. At the Berkeley plant? 

Q. Yes, sir. 

A. Since September 9, 1920. 

Q. Now, you testified that on Saturday, July 28, 
you saw a notice on the bulletin board which said 
something about a meeting of Employees Welfare 
Association? A. I did. 

Q. What bulletin board did you see that on? 

A. On the bulletin board in "A" Building. 

Q. And is that near your office? 



A^. L. E. B. et al 687 

(Testimony of Clifford A. Altman.) 

A. About 90 feet from inj office. 

Q. Near a time clock, I believe! 

A. Yes, sir. 

Q. Did you ever see any other bulletins on that 
board? [589] A. Have I'? 

Q. Yes. A. Yes, sir. 

Q. You pass by the board frequently? 

A. Yes, sir. 

Q. Several times a day? A. Yes, sir. 

Q. You generally stop to see if there is anything 
new on the board? 

A. If I see anything new I generally read it, 
yes. 

Q. Does the company put up bulletins on that 
board? A. Yes, sir. 

Q. Advices to employees, announcements, that 
sort of thing? A. Yes, sir. 

Q. What limitation is there on the use of that 
bulletin board, if any? Can anyone come in there 
and post what they like on it? 

A. As far as the company is concerned, yes, sir. 
Well, maybe I should qualify that. Any employee 
can put anything up there. 

Did you mean that people could come in from the 
outside and put it up? 

Q. Well, that was the way my question was 
framed. Any employee, you say? [590] 

A. Yes, sir. 

Q. Do you possess any kind of control over what 
material goes on that board? A. No, sir. 

Q. If an employee wanted to put up an ad there 



688 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 

for Ivory soap, would you think that was all right? 

Trial Examiner Ruckel: After all, that is going 
pretty far. 

Mr. Royster: Well, I want it to go j^retty far. 

A. Well, I don't know. I have never seen any- 
thing like that happen, so I can't tell you. 

Q. (By Mr. Royster) : Well, isn't it true, Mr. 
Altman, that you expect employees or anyone else 
who puts up a notice there to put up a notice that 
is not offensive? If you saw a notice that you 
thought would be offensive to your employees, 
wouldn't you tear it down? 

Mr. Hecht : I am going to object to the form of 
the question. 

Trial Examiner Ruckel : Well, if he saw a notice 
that was offensive, .you say? 

Mr. Royster: Yes. 

Trial Examiner Ruckel : Would he tear it down ? 

Mr. Royster: Yes. 

Mr. Hecht: I don't know what relevancy this 
has. 

Mr. Royster: It is just relevant to this extent: 
I am [591] trying to discover whether or not the 
company maintained any kind of control over the 
notices that were posted on the board. 

Trial Examiner Ruckel: Objection sustained. 
Find out if the company ever did tear anything 
down. 

Q. (By Mr. Royster) : Have you ever removed 
any notice from that bulletin board? 



N. L, R. B. et al 689 

(Testimony of Clifford A. Altman.) 

A. We have removed our own notices after they 
were past due. 

Q. Have you removed any notices because you 
thought they should not be on that board"? 

A. No, sir. 

Q. Have you knowledge that any notices have 
been removed for that reason ? 

A. No direct Iviiowledge, no, sir. 

Q. What indirect knowledge have you? 

Mr. Edises: Well, now, I will object to that as 
obviously calling for matters not within his own 
knowledge ; hearsay. 

Mr. Royster: Well, not necessarily. 

A. I never saw anybody remove a notice from 
the bulletin board. 

Q. (By Mr. Royster) : Well, now, did anybody 
ever tell you that he had removed a notice from the 
bulletin board "? A. No, sir. [592] 

Mr. Hecht: Now, Mr. Examiner 

Mr. Edises (Interposing) : He answered **No, 
sir. ' ' 

Trial Examiner Ruckel : If there is an objection, 
objection overruled. 

You may answer. 

Mr. Royster: I understand he did answer. 

Q. (By Mr. Royster) : You have answered, Mr. 
Altman? A. Yes, sir. 

Q. Your answer was "No, sir." 

A. My answer was "No, sir." 

Q. Now, you testified also, Mr. Altman, that on 



690 G olgate-Pahnolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 

July 30 the stewards were called to your office and 

there was a coni^ersation, or at least you were 

A. (Interposing) : Not my office. 

Q. Mr. Railey's office, was it? 

A. That is right. 

Q. That there was a conversation then with the 
ILWU representatives? After the Stewards had 
been given their letter, they took their letters, as 
you said, I believe, 

A. (Interposing) : Well, that happened the day 
before. 

Q. July 30? 

A. Oh, I thought you said 31st. 

Q. I didn't intend to. I meant July 30. 

A. Well, I may be mistaken. On the 30th, you 
are right. 

Trial Examiner Ruckel : Off the record. 
(Remarks outside the record.) [593] 

Trial Examiner Ruckel: On the record. 
We will recess until 1:30. 

(Whereupon, at 12:00 M. a recess was taken 
until 1:30 P.M. of the same day.) [594] 

(After recess:) 

(Whereupon, the hearing was resumed, pur- 
suant to recess, at 1:30 P.M.) 

Trial Examiner Ruckel: The hearing will re- 
sume, please. 
Mr. Altman. 



N. L. R. B. et at 691 

CLIFFOED A. ALTMAN 

called as a witness by and on behalf of Respondent, 
having been previously sworn, resumed the stand 
and testified further as follows : 

Cross Examination 
(Resumed) 

Mr. Royster : Can you tell me at what point 



Mr. Hecht (Interposing) : May I just enter an 
objection at this point, Mr. Examiner? If I recall 
the testimony correctly, Mr. Royster was examining 
Mr. Altman on the use of the bulletin boards. 

Trial Examiner Ruckel: Yes, sir. 

Mr. Hecht: And, as I recall, my motion to dis- 
miss the charge respecting the use of the bulletin 
boards was granted, there was no refusal of use ox 
the bulletin boards, and I don't think that matter 
should be gone into on cross examination. 

Trial Examiner Ruckel: I think the purpose of 
going into it was to see if he had notice of what 
this union scrap was about by reason of having 
seen 

Mr. Hecht: You mean as to the exhibits of the 
Board [595] that are in now? 

Trial Examiner Ruckel : Yes. 

Mr. Hecht : For that limited purpose, that is all 
right. 

Trial Examiner Ruckel : Is that the purpose ? 

Mr. Royster; Just generally to show he was 
aware of what appeared on the bulletin board, and 
that the bulletin board was the company's bulletin 
board. 



692 C olgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 

Q. (By Mr. Royster) : Now, on July 30, Mr. 
Altman, the company was requested to discharge 
the five Stewards, or to suspend them from employ- 
ment. After that had been done you testified that 
you had further conversations with the ILWU 
representatives. 

Now, may I have the exhibit file 1 

(The exhibit file was handed to Mr. Royster.) 

Q. (By Mr. Royster) : Were you aware at that 
time, during the time that you were conversing with 
the ILWU representatives, and after the Stewards 
had been notified of their suspension, that Harry 
Smith, for example, had then been employed by 
your company for nearly 15 years'? 

Mr. Edises : Objected to, incompetent, irrelevant, 
and inunaterial. 

Mr. Hecht: I object to that. 

Trial Examiner Ruckel : What is the relevancy ? 

Mr. Royster: I propose to show by this line of 
questioning [596] that every one of these Stewards 
was a man who had been in the employ of the com- 
pany for a great length of time, and suggest to this 
witness the reasonableness of my conclusion that he 
explored rather extensively with the ILWU repre- 
sentatives the reasons underlying the requests for 
suspension. 

Mr. Edises: Well, Mr. Examiner, I point out 
that their length of service with the company is not 
disputed, it is in the record, and the knowledge of 
that fact in the mind of this witness is of no ma- 



N. L, R. B. et at 69a 

(Testimony of Clifford A. Altman.) 
teriality to that issue. He is certainly entitled to 
ask the direct question as to what was said, but what 
this witness may have had lurking in the back of 
his mind has no direct bearing on the issue. 

Mr. Royster: This is cross examination, Mr. 
Edises. And may I inquire: Did you say that the 
length of time these mdividuals had been employed 
was in the record ? 

Mr. Edises: Isn't it? 

Mr. Royster : Oh, yes, it is. 

Mr. Hecht: Yes, he put an exhibit in. 

Mr. Royster : My impression was you said it was 
not in the record. 

Mr. Edises: No, I say it is in the record. 

Trial Eaxminer Ruckel : Objection sustained. 

Q. (By Mr. Royster) : Well, what inquiry, if 
any, did you make then of the ILWU representa- 
tives as to the reasons for [597] the requested 
suspensions '? 

A. I was not the spokesman. 

Q. No. I am asking you what you did, though, 
Mr. Altman? A. What I did? 

Q. Yes. What you asked 

Trial Examiner Ruckel (Interposing) : If any- 
thing. 

The Witness : I beg your pardon ? 

Trial Examiner Ruckel: If anything. Do you 
imderstand the question, Mr. Altman? 

The Witness : Why, I am trying to think what I 
can remember, what was said further than what has 
been stated. 



694 C olgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 
Mr. Hecht: Well, repeat what you said. 
The Witness: I don't know that I can elaborate 

any more on it. 

Q. (By Mr. Royster) : Well, did you make any 
inquiry (you, yourself, now) of any of these ILWU 
representatives as to the reason for suspending 
these five stewards? 

A. Not that I remember. 

Q. Did Mr. Railey make any inquiry in your 
hearing ? 

A. We made the statement that we 

Q. (Interposing) : Now, just a moment, Mr. 
Altman. 

Mr. Hecht: Let him finish his answer, please. 

Mr. Royster: It starts out not being answered. 
He said, "We made the statement." 

The Witness: Speaking for the company. [598] 

Q. (By Mr. Royster) : I asked him what Mr. 
Railey asked in his presence of the ILWU repre- 
sentatives concerning the reasons underlying the 
requested suspensions? ^ 

A. I do not recall. 

Q. Do you recall if Mr. Railey made any 
inquiry? A. Well, we 

Q. (Interposing): Just a minute now! 

Mr, Hecht : Let him answer. 

Mr. Royster: I submit that he is not answering. 
He is saying "We." I am asking 

Mr. Hecht (Interposing) : Well, I move to strike 
everything 



iV. L. R. B. et al 695 

(Testimony of Clifford A. Altman.) 

Trial Examiner Euckel: He may answer. 

Continue with your answer. Did Mr. Railey make 
any inquiry in your presence as to why the suspen- 
sion of these men was requested ? 

The Witness : Well, he certainly made the state- 
ment that as far as we knew there was no reason 
for their being suspended. 

Trial Exammer Ruckel : Well, that is a state- 
ment. Now, did he make any inquiry as to why they 
were being requested to be suspended? 

The Witness: Well, the statement — or the ques- 
tion was asked, and they replied that they were not 
in good standing with the union. [599] 

Trial Examiner Ruckel : Mr. Railey asked that ? 

The Witness: Yes. 

Trial Examiner Ruckel : You have already testi- 
fied to that. Did he make any further inquiry? 

The Witness: AVell, what further inquiry could 
he make? 

Trial Examiner Ruckel: Well, if he didn't make 
any, just say that he didn't. Maybe he couldn't. We 
want to know if he did. 

The Witness : That is as far as we know. 

Q. (By Mr. Royster) : In other words, Mr. 

Railey made no inquiry 

Trial Examiner Ruckel: Aside from 



Mr. Royster (Interposing) : He has not testified 
he made an inquiry. 

Mr. Hecht: He has indeed. He said Mr. Railey 
asked, and the union men said they were in bad 
standing. 



696 Colgate-Palmolive-Peet Co. va. 

(Testimony of Clifford A. Altman.) 

Mr. Royster: I will submit to what the record 
shows. 

Mr. Hecht: The record shows that this witness 
said 

Mr. Royster (Interposing) : Will you read back 
the record, Miss Reporter, please? 

Trial Examiner Ruckel: Read back the record. 
(The testimony and statements referred to 
were read by the reporter.) 

Mr. Royster: I will let it drop at that point. 

Q. (By Mr. Royster) : Now, Mr. Altman, do 
your duties require [600] that you go out in the 
operating departments of the plant frequently? 

A. I make it my duty to do so, yes, sir. 

Q. That is a daily occurrence, is it? 

A. Yes, sir. 

A. And during the period from about July 21 
to July 30, 1945, was it your practice to go out 
through the plant? A. Yes, sir. 

Q. Daily? A. Yes, sir. 

Q. During these daily tours of the plant did yon 
become aware that there was, well, a certain amount 
of unrest among your employees? 

A. I did not. 

Q. Now, on July 28 you saw on the bulletin 
board a notice of a meeting to be held by the 
Employees Welfare Association. What did that 
mean to you ? A. Not a thing ! 

Q. Nonetheless you saw fit to call it to the atten- 
tion of Mr. Wood, did you not ? 



N. L. R. B. et al 697 

(Testimony of Clifford A. Altman.) 

A. Why, I told liim about it, yes. 

Q. Yes. It was a matter worthy of comment^ 
wasn't it? A. Possibly. 

Q. Did you, when you were requested — and when 
I say ''You" at this time I am thinking of the com- 
pany — when [601] the company was requested to 
discharge or suspend the five Stewards did you asso- 
ciate that request in any respect with the notice that 
you saw on the bulletin board July 28 ? 

A. I don't think I did. 

Q. Did you know that a meeting of your em- 
ployees was held at the Finnish Hall on the after- 
noon of July 30, 1945? 

A. Only by hearsay. I didn't attend it. 

Q. You learned of it, you knew of it, did you 
not? A. Yes, sir. 

Q. It was a matter generally known throughout 
the plant, was it not? A. Yes, sir. 

Q. And you knew, did you not, that this meeting 
concerned the union affiliation of your employees ? 

A. I don't know how I would know that. 

Q. Well, I am asking you if you did know it? 

A. I did not. 

Q. Did you have any opinion as to the purpose 
of this meeting ? 

A. There were lots of stories going around, but 
I had no direct evidence. 

Q. Well, did you have any opinion about it ? 

Mr. Hecht: I think his opinion is not materia], 
Mr. Examiner. 

Mr. Royster: The state of this man's mind on 



698 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 
the dates [602] in which we are interested is just as 
much a matter of fact as the state of his stomach 
and is just as susceptible of proof. 

Mr. Heclit: If you will be consistent with that 
statement when I examine the other witnesses I will 
accept it. 

Trial Examiner Ruckel: I think it is relevant. 
You may answer as to what your opinion was. 

A. Well, I couldn't help but hear stories, but I 
had no direct evidence because I was not invited to 
the meeting, and I did not attend. 

Q. (By Mr. Royster) : I understand that. Now, 
I ask you again: what was your opinion, if you 
had one, with respect to the purpose of this 
meeting ? 

Mr. Hecht : When ? Before or after the meeting, 
Mr. Royster"? 

Mr. Royster: He can tell me when he formed 
the opinion. 

A. That is a pretty hard question to answer, 
just when I formed an opinion. The events and 
the news and the gossip and all gathered and 
accumulated until we finally found out some things, 
but just when it occurred I couldn't tell you. 

Q. (By Mr. Royster) : Well, I suppose then, 
Mr. Altman, you v/ill agree that eventually you dis- 
covered that the purpose of this meeting was to 
disassociate from the ILWU and to choose another 
bargaining representative ? 

A. That eventually came out, yes. [603] 



N. L. R. B. et at 699 

(Testimony of Clifford A. Altman.) 

Q. Now, will you tell me as best you can when 
you first learned thaf? 

A. It would have to be a guess. I can't say. 

Q. All right. Let's have your best guess. 

Mr. Edises: Well, Mr. Examiner, I submit that 
by the witness ' own testimony it is clear that a guess 
would be utterly valueless for the purposes of the 
proof. I object to the question on that ground. 

Mr. Royster: All right. I will try to put it a 
little more closely. 

Q. (By Mr. Royster) : Did you know of the 
purpose of this meeting on the day following its 
holding, on July 31? 

A. Only by hearsay. The employees did not 
ask me 

Q. (Interposing) : All right. Very well. You 
have answered. 

I am not sure that I correctly recall your testi- 
mony on this point, and if I am wrong, you may, of 
course, correct me. 

On August 17, 1945, the testimony is, and I 
believe you agreed, that the five stewards and the 
four committeemen applied for reinstatement to 
their positions. 

Was it to you that they applied for reinstatement *? 

A. Well, Mr. Wood and I together were in the 
office, in my office, and they came in there, and Mr. 
Wood was the si3okesman. 

Q. Now, when they applied to you for reinstate- 
ment did you know on that date, August 17, 1945, 



700 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Clifeord A. Altman.) 
that the meeting of July 30 [604] had been held for 
the purpose of severance from the ILWU and form- 
ing another labor organization? 

A. I presume it was fairly definitely stated by 
that time. 

Mr. Royster: I believe that is all. 

Trial Examiner Ruckel: Any questions by the 
AF of L? 

Mr. Eowell: Just one moment, please. I don't 
believe I have any questions. 

Trial Examiner Ruckel: Any further questions 
by the Respondent! 

Mr. Hecht: Mr. Edises, have you any exami- 
nation ? 

Mr. Edises: Just one moment. 

Redirect Examination 
By Mr. Edises : 

Q. Mr. Altman, did you ever arrive at a fixed 
and definite belief as to what the motive of the 
ILWU was in requesting these discharges'? 

A. You mean why they wrote those letters'? 

Q. That is right. Now, I would like to make 
my question perfectly clear. I am not asking you 
as to what may have occurred to you speculatively 
as possible reasons. The question is whether you 
ever arrived at any fixed and definite belief as to 
what the motive of the ILWU was in requesting 
these discharges'? 

A. Well, I had never followed it through on 
that score. 



N. L. R. B. et at 701 

(Testimony of Clifford A. Altman.) 

Trial Examiner Ruekel: What is your answer, 
thougli ? 

Mr. Hecht: Will you read the answer, Miss 
Reporter? [605] 

(The answer referred to was read by the 
reporter.) 

Trial Examiner Ruekel : Well, it seems to avoid 
an answer rather than being an answer. 

The question is: Did you ever arrive at a fixed 
opinion as to what the motive was? 

The Witness: Well, if the ILWU did not tell 
us the reason, anything that I could state would 
simply be an assumption. 

Trial Examiner Ruekel: Well, then, your an- 
swer is it did not? 

The Witness: That is right. 

Mr. Edises : That is all. 

Mr. Hecht: May I ask some questions, Mr. 
Examiner ? 

Trial Examiner Ruekel : Yes, sir. 

Q. (By Mr. Hecht) : Mr. Altman, you were 
asked whether on October 17 you already knew 
about the A F of L movement in the plant, or words 
to that effect? That is correct, isn't it? 

A. Yes. 

Q. What else did you know about on August 17 
besides this A F of L movement ? 

A. What else did I know about? 

Q. What else did you know besides this A F of L 
movement ? 



702 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Clifford A. Altman.) 

Mr. Rowell: That calls for an encyclopedic an- 
swer, Mr. Examiner. [606] 

Q. (By Mr. Hecht) : In connection with this 
matter you know that there had been a work 
stoppage? A. Yes, sir. 

Q. You knew there had been some talk in the 
paper about racial discrimination? 

A. Yes, sir. 

Mr. Royster: This is a rehashing of cross 
examination. 

Mr. Hecht: No, it is in response to your 
questioning. 

The Witness: I knew those things. Those were 
public utterances. 

Q. (By Mr. Hecht) : As public as the A F of L 
movement in the plant? 

A. Well, the A F of L, as far as I know, never 
sent me a notice that they were trying to organize 
our employees. 

Does that answer the question? 

Q. Yes. 

A. It was never put down in writing. 

Q. To you personally, that is? 

A. To me personally. 

Mr. Hecht: I have no further questions. 

Mr. Royster: Nothing further for the Board. 

Mr. Rowell : May I ask a question ? 

Trial Examiner Ruckel: Yes. 



N. L. R. B. et al 703 

(Testimony of Clifford A. Altman.) 
Recross Examination 
By Mr. Rowell : 

Q. In regard to the question concerning the 
motive of the ILWU in requesting the discharges, 
did you [607] ever form an opinion, although it 
might not have been as strong as Mr. Edises re- 
quested, did you ever form an opinion as to their 
motive in requesting the discharges'? 

A. I couldn't form that oiDinion. 

Q. My question is, did you or did you not? 

A. I did not. 

Q. Did you have some information as to that 
motive, whether by hearsay or otherwise? 

A. Well, there were numerous things that you 
might have — if you wanted to carry through and 
say that they were the things that caused it, but I 
had no evidence as to what that — what lay behind 
these orders. 

Mr. Rowell: I have no further questions. 

Trial Examiner Ruckel : That is all. 
(Witness excused.) 

Mr. Hecht: Call Mr. Carter. 



CECIL R. CARTER 

called as a witness by and one behalf of the Re- 
spondent, being first duly sworn, was examined and 
testified as follows: 



704 Colgate-PalmoUve-Peet Co. vs. 

(Testimony of Cecil R. Carter.) 

Direct Examination 
By Mr. Hecht : 

Q. Will you state your name for the record, Mr. 
Carter? A. Cecil R. Carter. 

Q. A¥liat is your business or occupation'? 

A. Process Supervisor, Colgate-Palmolive-Peet 
Company, Berkeley. 

Q. And were you employed b}" the — let me put 
it another way. 

How long have you been employed by the Re- 
spondent ? 

A. Since September 1924. 

Q. Were you at the plant on or about August — 
when was that visit of Mr. Howard's? 

Mr. Royster : August 25. 

Q. (By Mr. Hecht): August 25, 1945, at the 
plant? A. I was. 

Q. What day of the week was that? 

A. Saturday. 

Q. Where in the plant were you at the time? 
Oh, yes, I imagine you were all over the plant? 

A. All over the plant. 

Q. Calling your attention to about 1 or 1:30 in 
the afternoon, being in "A" Building, can you tell 
me of anything unusual that occurred at that time? 

A. Yes. I was informed by Miss Kaiser, our 
Plant Nurse, that some of the employees who had 
been dismissed from the company were in the plant 
electioneering for the A F of L. 

Q. Did you do anything pursuant to that in- 
formation ? 



N. L. R. B. et at 705 

(Testimony of Cecil R. Carter.) 

A. I immediately went through the plant to find 
them. I went through the northern side of the plant 
first, came [609] back through the middle building, 
and then went to the "TA" Warehouse where I 
found them. 

Q. What occurred? 

A. Well, there was about 20 or 25 emjDloyees 
grouped around Mr. Harvey Howard, Mr. Dave 
Luchsinger and Mr. Lomiberg. 

Q. AYere those employees supposed to be at work 
at that time ? 

A. They were supposed to be working at that 
time. 

Q. What, if anything, did you do? 

A. I motioned to Mr. Luchsinger, and he came 
over, and I asked him if he had permission to come 
in the plant. He said, "No," and I reprimanded 
him and told him that he had worked there Ions; 
enough, than he knew better than to come into the 
plant and bring other people in the plant without 
getting permission. I told him that I would have 
to escort him to the gate, they would have to leave 
until such time as they got permission to come in. 

Q. You say you escorted them to the gate. Did 
anything occur at the gate ? 

A. Going over to the gate either Mr. Luchsinger 
or Mr. Lonnberg called attention to Mr. Howard 
that one Mr. Carlisle Harrison was standing on the 
dock of "A" BuikUng, and Mr. Howard— 

Q. (Interposing) : Can you identify Mr. Carlisle 
Harrison [610] a little? 



706 Colgate-PahnoUve-Peet Co. vs. 

(Testimony of Cecil R. Carter.) 

A. Mr. Carlisle Harrison was a former employee 
of the Company, but he was not at that time. And 
I miderstand, after investigating, after escorting the 
gentlemen to the gate, I investigated and he was 
brought in there by Mr. Gleichman. 

Q. And what did you do when Mr. — whoever it 
was that called your attention to Mr. Harrison — 
what did you do with respect to that, if am'thing? 

A. I didn't get that. 

Q. Well, when your attention was called to Mr. 
Carlisle Harrison, did you do anything? 

A. Mr. Harvey Howard immediately turned 
around to me and said, "It is mighty funny that the 
company will allow the other side in here but won't 
allow us in." 

I said "I didn't know Mr. Carlisle Harrison was 
in the plant, and I will investigate him the same as 
I investigated you, and if he has no business in 
here he will be escorted to the gate the same as 
you are." 

Q. What occurred, if anything, after that? 

A. I then went upon the dock and asked Mr. 
Harrison what business he had in the plant. He 
told me he was brought in by Mr. Gleichman, he 
was hired by the union to come out there in order 
to show Mr. Gleichman the employees and help him 
check their books. [611] 

I then asked Mr. Chuck Grube the same question, 
and he replied the same thing. And we went to Mr. 
Gleichman, and he told me the Union was paying 
Carlisle Harrison to come out there and help him, 



N. L. E. B. et al KfJ 

(Testimony of Cecil R. Carter.) 
and lie had just as miicli right in the plant as he 
did, and according to the contract for the company 
he had a right to enter that plant at any time to 
check dues books. 

Q, That is what Mr. Gleichman told you'? 

A. Yes, sir. 

Q. Anything else occur? 

A. I then went to the telephone and. called Mr. 
Wood and told him what had happened, and Mr. 
Wood asked me to go to Mr. Gleichman and ask 
him to ask Mr. Harrison to leave the plant, rather 
than have him in there and cause any trouble. 

So I went to Mr. Gleichman and asked him, and 
he got quite peeved over it. And he said he wanted 
to talk to Charlie Wood on the phone. So we went 
back and called Charlie Wood again, and they had 
quite a conversation over the phone. And finally he 
told me that Mr. Wood wanted to talk to me. So I 
talked to Mr, Wood on the phone then, and he asked 
me if I had time to go with Mr. Gleichman and 
Mr. Harrison and stay with them until they left the 
plant, and see that they did no electioneering. I told 
him I had the time to do it, and I did. We went 
through the plant and I heard no electioneering 
from either one of them. [612] 

Q. Now, before that time, when you escorted 
Mr. Howard and Mr. Luchsinger and Mr. Lonnberg 
to the gate, was there anybody at the gate at that 
time? 

A. We had a watchman at the gate. 

Q. Do you recall his name? A. Otto. 



708 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Cecil R. Carter.) 

Q. Did any further conversation ensue between 
yourself or, rather, strike that. 

Did any conversation occur between yourself and 
Mr. Lonnberg in the iDresence of Mr. Luchsinger 
and Mr. Lonnberg and Mr. Howard? 

A. With Mr. 

Q. In the presence of Mr. Lonnberg with respect 
to the way they got into the plant '^ 

A. I asked Otto, "What is the idea of letting 
these men into the plant without them having per- 
mission to come in?" and his remark to me was, "I 
can't see everything." 

Q. Did any of these men say anj^thing; Mr. 
Luchsinger, Mr. Harvey Howard, or Mr. Lonnberg ? 

A. Nothing that I laiow of to the watchman. 

Q. To yourself? 

A. Well, they remonstrated with me quite 
fiercely on escorting them to the gate, and Mr. 
Harvey Howard says, "By the way," he says, "what 
is your name?" I said, "My name is C. R. Carter," 
and he said, "Well, you haven't heard the last [613] 
of this." He says, "You will hear more about this.'* 
I said, "I work here six days a week." 

Q. Do you know what Mr. Harvey Howard's 
capacity was ? 

A. It was the first time I had ever met Mr. 
Howard. 

Q. You did not know what his functions were 
with respect to Mr. Luchsinger and Mr. Lonnberg? 

A. I had heard that he was their organizer. 

Q. Has any foreman in your department re- 



A^. L. E. B. et al 709 

(Testimony of Cecil R. Carter.) 
ported, to you any incidents where workers in the 
plant were threatened for wearing A F of L buttons 
or distributing A F of L literature ? 

A. No foreman under me has made such a report 
to me. 

Q. Did any worker personally make such a re- 
port to you? A. No, sir. 

Mr. Hecht : May I have a moment 's recess, Mr. 
Examiner ? 

Trial Examiner Ruckel : Yes, we will recess for 
five minutes. 

(A short recess w^as taken.) 

Trial Examiner Ruckel: Any further questions 
by the Respondent? 

Mr. Hecht: Yes, sir, Mr. Examiner. 

Q. (By Mr. Hecht) : Mr. Carter, do you know 
Mr. Nick Tate? A. Yes, sir. 

Q. He was an employee at your plant? 

A. He worked in the Raw Stock Department 
under Mr. Harvey Nelson as foreman. [614] 

Q. Calling your attention to the week prior to 
August 26, did you see Mr. Nick Tate engage in a 
conversation with Mr. Gleichman, the man who is 
here, anywhfere in the plant? A. No, sir. 

Q. Did you specifically hear Mr. Gleichman ac- 
cuse, or rather, charge Mr. Nick Tate with being 
an A F of L organizer? A. I did not. 

Q. Calling your attention to September 1, 1945, 
were you at the plant? A. Yes, sir. 

Q. Will you tell me if anything unusual occurred 



710 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Cecil R. Carter.) 

that day? I have reference, Mr. Carter, to the 

picket line incident outside the plant? 

A. Oh, I don't — I couldn't connect any of these 
dates with any of these times. 

Q. Well, you recall the incident? 

A. I recall the incident. 

Q. Will you relate what occurred to the hest of 
your recollection? 

A. Well, the night before Mr. Altman asked me 
if I could come down to the plant early the next 
morning, that he had heard that the Business Agents 
from the CIO were going to check the books on all 
the employees coming in the gate. And I asked him 
what he meant by "early," and he said, "six 
o'clock." I told him I could. [615] 

Q. By the way, what time does work start in 
the morning ? A. 7 :30 the whistle blows. 

Q. Go on, Mr. Carter. 

A. I got to the plant possibly a couple of min- 
utes after six o'clock and went to the front gate 
and there was nobobdy there, nobody from the union 
had showed up yet. And I thought it was funny 
that they were supposed to be there at six o'clock. 
And I don't think they showed up until it was close 
to six-thirty, as I remember. It could have been 
a little after or a little before. I don't remember 
exactly. 

Q. By "union men" you mean representatives 
ofthelLWU? A. Yes. 

Q. And do you recall the names of any of those 
ILWU representatives? 



N. L, R. B. et al 711 

(Testimony of Cecil R. Carter.) 

A. Mr. Gleichman was tliere, and quite a few 
men that I have never seen before. 

Q. Yes. Did they enter the plant? 

A. They did not. 

Q. Did they take a position an}^ place near the 
plant? A. They stopped at the front gate. 

Q. Hov/ far away w^ould you say? 

A. Well, right at the gate, I would say. 

Q. Is there a sidewalk next to the gate? 

A. There is a sidewalk to one side of the gate. 
It stops there. The gate is an automobile drive- 
way. [616] 

Q. Yes. And what else occurred, if anything? 

A. When Mr. Gleichman came there he asked 
me if anybody had come in yet, and I told him 
there were two or three employees had already 
gotten in, and I named them to him. And he sent 
one of the men — I couldn't say who — to go in and 
check those employees' books that had already 
gotten in. 

Q. Anything else of note occur? 

A. Well, when the employees started coming in 
these union men stopped each one as they came in 
and asked for their union books, and after they 
looked at them, why, they came on in the plant. 

Q. I think you have told me that the Berkeley 
police eventually got to the plant? 

A. Well, after the employees got to coming 
quite fast they couldn 't check the books fast enough, 
and the automobiles started backing up in the 
street. That was a little later on. 



712 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Cecil R. Carter.) 

Q. That is plant employee automobiles'? 

A. That is right. And the Berkeley police were 
there, and this officer came ux3 and told them they 
couldn't block the city streets, that they would have 
to let the cars through. So then the imion men 
came inside the gate and started checking the cars 
after they came through the gate. 

Q. And how long did this take? When did it 
end, if at all? 

A. Well, the whistle blows at 7:30, and I think, 
as close [617] as I can remember, I think they left 
shortly after eight o'clock. 

Q. Yes. At that time, did you hear any union 
representative make any threat to any of the em- 
ployees ? 

A. One of the employees came up there and 
was quite mad about it and wanted to push his way 
through, and said they had no right to stop him; a 
man by the name of Stone. 

Q. Yes. 

A. And they finally told him he could not go 
in unless they saw his book. I don't know whether 
he got his book out and showed it to them or not, 
but he finally went on in the plant and went to 
work. 

Q. Any other incident of similar nature, do you 
recall ? 

A. That is the only one that I know that ran 
into trouble. There were some of the others that 
didn't go in, though. 

Q. Yes. 



N. L. E. B. et al 713 

(Testimony of Cecil R. Carter.) 

A. They were handed letters and told they 
couldn't go in. 

Q. Were you aiding the union officials in this 
check-up? A. I was not. 

Q. Did you yourself i^revent any emjoloyee from 
coming into the plant? A. I did not. 

Q. Do you know an employee by the name of 
Alden Lee? A. I do. 

Q. Did Mr. Alden Lee on this very day say to 
you, "What [618] the hell is going on here?" 

A. Something to that effect. 

Q. And what did you say? 

A. I said, "They are checking up on union 
books. ' ' 

Mr. Hecht : That is all. 

Trial Examiner Ruckel: Questions by the CIO? 

Mr. Edises: No questions. 

Cross Examination 
By Mr. Royster: 

Q. Mr. Carter, have you seen Mr. Gleichman 
in the Respondent's plant on more than one oc- 
casion? A. I didn't get the first of that. 

Q. Have you seen Mr. Gleichman in the plant 
on more than one occasion? 

A. I have seen him numerous times. 

Q. Have you seen Mr. Duarte in the plant? 

A. I have. 

Q. Have you seen Mr. Gonick in the plant? 

A. I have. 



714 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Cecil R. Carter.) 

Q. Have you ever seen them in the plant un- 
accompanied by any representative of the manage- 
ment ? A. Yes. 

Mr. Eoyster: That is all. 

Mr. Rowell: No questions. 

Mr. Hecht: Just one more question. 

Redirect Examination 
By Mr. Hecht: 

Q. Mr. Carter, did you form any opinion as to 
why there was this check-up of dues books? 

Mr. Royster: I am going to object to that. I 
don't think it is material. 

Trial Examiner Ruckel: This man took no part 
in determining the discharge, did he'? 

Mr. Hecht: No, but, as I understand it, testi- 
mony was admitted here on the ground he was 
part of this company's state of mind. 

Mr. Royster: I tink I can say that none of the 
Board's testimony was to show the state of mind 
of Mr. Carter. 

Mr. Hecht: Well, the testimony as to the threat 
or the accusation against Mr. Tate was tied up to 
Mr. Carter, and I assume that the reason for tying 
it up is to show knowledge on the part of the com- 
pany. 

Mr. Royster: Yes, but I don't think your prem- 
ise follows from that. 

Trial Examiner Ruckel: It is a little different, 
read the question, please? 



N. L. R. B. et al 715 

(Testimony of Cecil R. Carter.) 

(Tlie question referred to was read by the 
reporter.) 

Trial Examiner Ruckel: He may answer. 

A. I was told by a Union Business Agent (as I 
remember, Mr. Gleichman made the statement) that 
the dues books were in such a mess that it was 
going to be an awful headache getting them straight- 
ened out. [620] 

Q. (By Mr. Hecht) : You formed no opinion, 
but this was stated to you? 

A. That is all I had to go by. 

Mr. Hecht: That is all. 

Mr. Rowell: Could I ask one question? 

Recross Examination 
By Mr. Rowell: 

Q. You mentioned the delivery of these letters, 
letters by the CIO Union. 

A. I didn't hear the first part of your question. 

Q. I was asking about these letters. I think 
you testified that the CIO Union people at the gate 
delivered some letters to certain of the employees 
as they came to the gate. A. That is right. 

Q. Is that right? A. That is right. 

Q. These letters, they had them prepared al- 
ready in their hands? 

A. They were in an envelope. 

Q. They would pull the out of the envelope and 
deliver them to these people? 

A. They handed the employees the envelope, and 



716 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Cecil R. Carter.) 

the ones they handed the envelope to, they told 

them they couldn't go in. 
Mr. Rowell: That is all. 
Mr. Royster: Nothing further. [621] 
Trial Examiner Ruckel: That is all. 

(Witness excused.) 

Mr. Hecht: Mr. Stanberry, will you take the 
stand, please? 



DON E. STANBERRY 

called as a witness by and on behalf of Colgate- 
Palmolive-Peet Company, Respondent, being first 
duly sworn, was examined and testified as follows: 

Direct Examination 
By Mr. Hecht: 

Q. Mr. Stanberry, will you give your name for 
the record, please? 

A. Don E. Stanberry, S-t-a-n-b-e-r-r-y. 

Q. And what is your business or occupation? 

A. I am Production Supervisor, Colgate-Palm- 
olive-Peet Company, Berkeley. 

Q. And how long have you been employed at 
Respondent's plant? A. Since 1935. 

Q. And you were employed in your present ca- 
pacity all during the months of July, August, and 
September? A. I was. 



N. L. R. B. et al 717 

(Testimony of Don E. Stanberry.) 

Mr. Hecht: Mr. Examiner, I am sorry. May I 
recall Mr. Carter'? 

That is all right. Let it go. 

Q. (By Mr. Hecht) : Do you know a Mr. Al- 
bert Zulaica? [622] A. I do. 

Q. During the month of August did Mr. Zulaica 
come to you with a complaint about having been 
threatened for wearing an AF of L button and elec- 
tioneering for AF of L? 

A. Perhaps, direct; either directly or indirectly. 
I don't remember whether it was directly from him 
or through his foreman. 

Q. Do you recall the nature of the complaint? 

A. Well, the complaint was that Charles Lea- 
cock and other identified colored people were threat- 
ening the men at night. 

Q. Was the reason for the threat given you? 

A. I believe they stated it was connected with 
wearing AF of L buttons. 

Q. Did you take any action in connection with 
that? A. I did not. 

Q. Did you speak to Mr. Zulaica about the mat- 
ter? A. Yes, I did. 

Q. By the way, what was Mr. Leacock's posi- 
tion? 

A. Mr. Leacock was porter, and he was also a 
CIO Steward. 

Q. I take it Mr. Leacock did not hold any fore- 
man's position, any supervisory position? 

A. He held no supervisory position whatsoever. 

Q. Did you hold a conversation with Mr. Zulaica 



718 Colgate-Pahnolive-Peet Co. vs. 

(Testimony of Don E. Stanberry.) 

with respect to his dealings with Mr. Leacock ? [623] 

A. Yes, I did. 

Q. And will you give us the burden of the con- 
versation ? 

A. Well, it was more in the nature of a request 
from Zulaica for advice as to what to do in the situ- 
ation, the general situation as well as this particular 
incident. And I went over the whole situation with 
him from beginning to end, and pointed out that 
the best legal advice we had been able to obtain 
substantiated the fact that our present CIO con- 
tract was valid, and that that required that anyone 
working for the company would have to be a mem- 
ber of the CIO Union, and also be in good standing. 
I also pointed out that what meant to be in good 
standing we did not know, and the union had never 
told us the exact reason for the previous dismissals 
or suspensions, I should say, other than that they 
were not in good standing. 

Q. Did you advise him that Mr. Leacock had as 
much a right to express an opinion in the contro- 
versy as anybody else 1 A. That is quite true. 

Q. Did you advise him to avoid controversy with 
Mr. Leacock *? 

A. Well, I told him the best thing was to try to 
smooth it over as easily as he could. 

Q. Mr. Stanberry, were you in the plant Sep- 
tember 1, 1945"? A. September 1^ Yes. 

Q. Yes. Do you recall the occasion when some- 
thing like 18 [624] employees were called into Mr. 
Railey's office? A. Yes, I was there. 



iV. L. B. B. et al 719 

(Testimony of Don E. Stanberry.) 

Q. And do you recall Mr. Railey stating that 
lie had never wanted a union in the first place, that 
now the employes had it they had to take the con- 
sequences ? 

A. I did not hear him make such a statement. 

Q. Did you hear anything substantially to that 
effect? A. I did not. 

Q. Did you hear either Mr. Railey or Mr. Wood 
or Mr. Altman, or either of them, state that the 
reason they were in such a mess is because they 
wTre wearing AF of L buttons ? A. I did not. 

Mr. Hecht: I think that is all. 

Mr. Edises: No questions. 

Trial Examiner Ruckel: Questions'? 

Mr. Royster : : No questions ? 

Mr. Rowell: No questions. 

Trial Examiner Ruckel: That is all. 
(Witness excused.) 

Mr. Hecht: Mr. Wood. 

Mr. Wood: Do you swear me again, or have I 
been sworn? 

Trial Examiner Ruckel: You have been sworn, 
so I won't swear you again. 



CHARLES WOOD 

called as a witness by and on behalf of Colgate- 
Palmolive-Peet [625] Company, Respondent, hav- 
ing been previously sworn, was examined and testi- 
fied as follows: 



720 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

Direct Examination 
By Mr. Hecht: 

Q. Mr. Wood, you have already stated your 
name, haven't you? A. Yes, sir. 

Q. And you have already given your employ- 
ment with the Respondent? A. Yes, sir. 

Q. You have been employed approximately 25 
years ? A. 25 years. 

Q. And in addition to your position or func- 
tion as a Purchasing Agent, what other functions 
do you perform for the Respondent? 

A. I handle the labor relations. 

Q. Will you expand a little more on that, if you 
will? 

A. Well, I attend to the negotiations with the 
committee, make the decisions with respect to the 
labor matters. 

Q. Yes. And, if it isn't digressing too far, I do 
not direct the labor in the factory. After the help 
are in there, why, the factory people handle it. I 
have nothing to do with that. But if a dispute 
comes up that is of sufficient importance so that it 
cannot be settled by the foreman and a meeting is 
necessary, I take charge of that meeting and make 
the company's decisions. [626] 

Q. Mr. Wood, were you at the plant — let's put 
it another way. 

Were you in Berkeley on July 26, 1945? 

A. I was. 



.V. L. R. B. et al 721 

(Testimony of Charles Wood.) 

Q. Did you have any knowledge of the dinner 
meeting held by the employees on July 26? 

A. I did not. 

Q. Were you in the plant July 28 % 

A. No, sir. 

Q. Where were you on July 28*? 

A. At home. 

Q. Did you arrive at the plant at alH 

A. I didn't visit the plant at all. 

Q. Did you on that day call Mr. Altman, or did 
Mr. Altman call you? 

A. I called Mr. Altman. 

Q. How did you come to learn of the notice 
posted on July 28, 1945? 

A. When I called him I asked him if there was 
anything doing, and he told me "'No." Having in 
mind — well, I don't know whether I ought to say 
that or not. So much goes here I don't hardly 
know where to stop. 

Mr. Royster: Well, nobody stopped you. 

Mr. Hecht: Will you read Mr. Wood's partial 
answer ? 

(The answer referred to was read by the 
reporter.) [627] 

Q. (By Mr. Hecht) : Well, Mr. Wood, did the 
notice, or the advice you received with reference 
to the notice, mean anything to you? 

A. It did not. 

Q. Did the title "Employees Welfare Associa- 
tion" suggest anything to you? 



71:2 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

A. Well, somewhat vaguely. I had in mind that 
perhaps they were geting up some sort of a welfare 
association. They have similar things in other 
plants, independent of the unions, that have credit 
facilities for men banking. 

Q. To put it in other words, Mr. AVoods, it didn't 
strike you as a collective bargaining agency*? 

A, Not at all, not at all. 

Q. Yes. On July 29 were you in Berkeley, or 
at the plant? A. I was not. 

Q. On July 30? A. No. 

Q. On July 31? A. No. 

Q. Where were you on those dates? 

A. At Portland. 

Q. At Portland. While at Portland did you 
come to hear of some of the matters that have been 
testified to here? A. Yes, sir. 

Q. Who advised you as to them? [628] 

A. Could I ask you to be a little more explicit? 

Q. Who told you about it? 

A. Well, the first thing, I had been unable to 
get the plant on the phone all day. The telephone 
lines were badly congested, evidently. It was a 
Monday, about eight o'clock at night I succeeded 
in getting Mrs. Sellers, my secretary, on the phone, 
and discussed certain matters pertaining to pur- 
chasing with her, materials. We were badly short 
of many critical materials at this time. And she 
says, "Have you heard from anybody that they let 
out a number of men today?" I says, "No, I did 
not." 



N. L. R. B. et at 723 

(Testimony of Charles Wood.) 

Q. What date was this, Mr. Wood? 

A. That was on July 30. 

Q. Yes. A. Late in the evening. 

Q. Did you eventually hear from Mr. Railey or 
Mr. Altman'? 

A. Not until the following morning. 

Mr. Royster: The witness has not concluded his 
testimony with respect to what he heard from Mrs. 
Sellers. 

The Witness: Do you want the conversation 
from Mrs. Sellers'? 

Trial Examiner Ruckel : Have you fiinished your 
conversation on the phone with your secretary? 

The Witness: Yes, except she said that they 
were the stewards that were let out. I asked her 
if she knew why. She [629] said, "No," that they 
had been busy all day and hadn't got the particu- 
lars. 

Q. (By Mr. Hecht) : Did you eventually talk 
to Mr. Altman or Mr. Railey? 

A. I talked to Mr. Railey. 

Q. And what information 

A. (Interposing) : The following day. 

Q. That is July 31? A. Yes, sir. 

Q. What information, if any, did he give you 
with reference to the incidents of July 30 and 31? 

A. He told me the story of what has been testi- 
fied here today. 

Q. Testified by Mr. Railey or the other porsons 
here? 



724 Colgate-Palmoliue-Peet Co. Vii. 

(Testimony of Charles Wood.) 

A. Well, he told me that — well, may I tell the 
story, what he told me? 

Q. Well, concisely, if you will. 

A. Yes. He told me that the day before, early 
in the morning, the CIO had demanded the release 
of Messrs. Marshall, Smith, Haynes, Luchsinger, 
and Moreaii. And I asked him why. Well, he said 
they brought out a letter demanding that we release 
them as they were not in good standing with the 
union, and they could not be employed until the 
matter of Uieir suspension had been determined. 
He read the letter to me, in fact. [630] 

Q. Did you inquire of Mr. Railey whether he 
had asked the reason for their not being in good 
standing ? 

A. I asked him if he knew what was back of it 
all, and he said he didn^t, that he was at a loss to 
understand it. 

Q. When did you return to Berkeley and to 
your occupation? 

A. I arrived on the Cascade, that got in around 
two o'clock on August — Wednesday, August 1. I 
— let me coordinate those dates. I think that is 
right. 

Q. Did you go to the plant? 

A. I went to the plant immediately. 

Q. And what did you find there? 

A. I found the plant shut down. 

Q. And for how long was the plant shut down, 
Mr. Wood? 



N. L. R. B. et al 725 

(Testimony of Charles Wood.) 

A. The plant was shut down that afternoon and 
the following day. 

Q. In other words, there was a work stoppage 
at the plant*? A. A work stoppage, yes. 

Q. Were you aware at that time, Mr. Wood, that 
the ILWU had a no-strike pledge for the wartime? 

A. I was very well aware of it. 

Q. Did you get any information from any source 
respecting the work stoppage and the suspension of 
the five stewards and four committeemen from any 
source at that time when you returned? 

A. From Mr. Railey. [631] 

Q. Did he expand further on what he told you 
over the phone ? 

A. No, he told me substantially the same thing. 
He told me the history of everything that had hap- 
pened up to date, how he had gone to the meeting, 
and the meetings that had been held, that he knew 
of. 

Q. Did you have any opinion as to the probable 
cause for the discharge of the five stewards, Mr. 
Wood? 

A. Well, not definite at that time at all. 

Q. On what was it based? 

A. I beg your pardon? 

Q. On what was it based, such opinion as you 
had? 

A. Well, I knew of the no-strike pledge, I had 
heard that the stewards had been in difficulty with 
the union for not carrying out the anti-racial dis- 
crimination policy. 



726 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

Q. Had you heard of any previous trouble that 
the stewards had had with the union, directing your 
attention to about December, 1944? 

A. December, 1944? 

Q. Maybe I am in error as to the date. 

A. Well, that is a long time back, that was 
nearly a year. I had heard of — I had heard that 
the Stewards had been summoned before the — some 
regulatory body of the union and censured for not 
carrying out the anti-racial discrimination policy, 
but whether it was December or not, as far back 
as that, but it was quite a long period before the 
first of August back. 

Q. Had you heard anything in connection with 
failure to check on dues paying? 

A. I had not at that time. 

Q. Had you heard anything in connection witli 
failure to get the men who were not ILWU to come 
into the ILWU? A. Not at that time. 

Q. Not at that time. Did you and Mr. Eailey 
do anything about getting legal counsel in con- 
nection with the interpretation of your collective 
bargaining agreement with the ILWU? 

A. Yes, sir. 

Mr. Rowell : Well, Mr. Examiner, that is a simi- 
lar inquiry that I tried one time. 

Mr. Hecht: That state of mind of these per- 
sons, Mr. Examiner. 

Mr. Edises: A question of good faith enters in 
here, Mr. Examiner. 



A^. L. R. B. et al 72Y 

(Testimony of Charles Wood.) 

Trial Examiner Ruckel : He may answer. 

A. Yes, we did. 

Q. (By Mr. Heclit) : And what is it you did? 

A. Well, when I returned Mr. Railey showed me 
a letter from Clark & Heafey. 

Q. What are they? 

A. Attorneys. They had been our regular attor- 
neys in [633] Oakland. In which they advised 
that 

Mr. Royster (Interposing) : May I interrupt 
here? It seems to me that it is perfectly pertinent 
to show that the company sought legal advice, and 
I think that has been shown. Now, it seems to me 
further that it can only be shown that the company 
did or did not act in accordance with that advice. 
Now, just what they did, or what the advice was 

Mr. Hecht (Interposing) : Yes, I will cut that 
short, Mr. Royster. 

Q. (By Mr. Hecht) : And did you act in ac- 
cordance with that advice? A. We did. 

Q. Directing your attention to Section 3 of the 
contract, were you advised that you had to comply 
with the terms of that Section 3 strictly? 

A. We were. 

Q. Were you further advised that you could not 
set yourselves up to judge the justice of putting 
these men in bad standing? A. We were. 

Q. And you acted accordingly? 

A. We did so. 

Q. Were you at the plant on or about August 
17, 1945? To refresh your recollection that is the 



728 CoJgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

date when the 9, to-wit, the five stewards and the 
four conunitteemen, came and [634] asked for their 
employment? A. Yes, sir; yes. 

Q. Well, will you relate in your own words, give 
your version of that incident? 

A. I was in my office, and Mr. Altman came and 
said, '"Will you come over to my office wdth me? 
Those nine fellows" — I think was his language — 
"that were sus^^ended are over there and w^ant to 
go back to work." 

I retired to his office with him, and there were 
that group. Do I need to name them? 

Q. No, we know who they are already suffi- 
ciently. 

Trial Examiner Ruckel: No. 

A. The group were in there, and they were in 
their working clothes. Some of them had their 
lunch boxes with them. And Mr. Sherman, with a 
gesture of both hands, says, "Well, we are here to 
go to work." And, to the best of my recollection, 
I fell back on our legal advice, that "We have a con- 
tract with the CIO, and you have been suspended 
on their order for violation of the constitution and 
by-laws, and we must observe that contract. I am 
very sorry, but I don't see how we could put you 
back to work under the conditions. You will have 
to remain out until the issue has been determined 
between you and the CIO." 

Q. Calling your attention, Mr. Wood, to Au- 
gust 30, 1945, did you on that date have a conver- 
sation with Mr. Hack [635] Gleichman ? 



A^. L. B. B. et al 729 

(Testimony of Charles Wood.) 

A. I think so, there abont that date anyway. 

Q. Will you tell us the substance of that conver- 
sation as well as you can recollect it? 

A. Well, my recollection of the conversations of 
August 30 and 31 are pretty well merged together. 
If it is permissible 

Q. (Interposing) : Well, if you can, please give 
it to us chronologically. Let's stick first to the 
August 30 events, if you will. 

A. AVell I think it was August 30 that he came 
to me and he had a list of employees that he wanted 
us to let cut. It was a long list. He had two sheets 
of this eight and a half by thirteen blue-lined paper 
such as we are using here, and in addition to that 
a first sheet that was in front of the others that 
had been torn off, and he had, maybe, a quarter or 
a third of that sheet at the top of the paper, and 
he had a list of names there, and he handed me 
that — wanted to hand me that sheet of paper, and 
demanded that we release that group immediately. 
I didn't take the sheet from him, but I wanted to 
see what was on it, nevertheless. And as he turned 
the sheet, I noticed that the first page was com- 
pletely filled with names, I might say the first part 
of a page was completely filled with names, the sec- 
ond page was completely filled, and the third page 
was filled down within maybe five or six lines of the 
bottom of the page. And he says, ' ' These [636] peo- 
ple here are in bad standing, and some of them, 
their dues aren't paid," and he says, "We want you 
to let them out right off." 



730 Colgate-Palm olive-Peet Co. vs. 

(Testimony of Charles Wood.) 

I laughed at him and told him to ^'Go to hell," 
and that I was not going to act on any such order, 
that if he had anything like that, that I wanted a 
letter from the union signed by some duly author- 
ized officer, notifying us to that effect. 

Well, he says, "I will get you one." I said, "Well, 
this thing has gone too far. You are getting too 
many people involved here. Why, the first thing 
you know, if this keeps on, we will be shut down," 
and I says, "I want to talk to Mr. Heide about this 
thing before we get into this thing any deeper." 

He says, "All right, I will see if I can get him 
to come out here," and Mr. Heide came out, and we 
discussed the thing. And I pointed out again to Mr. 
Heide — he had Mr. Duarte with him, that it was 
taking too many men out of the plant, and that it 
was seriously — any such number of men would seri- 
ously interrupt our operations, that there were men 
there in key positions. 

Well, he, Heide, arose and said, "Well, we will 
talk it over and let you know. ' ' 

Now, afterwards I counted on one of my own 
sheets the number of lines on those sheets, and from 
the number of names, [637] the appearance of the 
sheets, the number of names, I estimate that the 
sheet that Mr. Gleichman wanted me to take to let 
them out 

Pardon me. Let me start over again. 

I would estimate that the number of men that 
he had on the sheets which he wanted me to take 
and then let out that group of men comprised be- 



N. L. R. B. et al 731 

(Testimony of Charles Wood.) 

tweeii, ob, 60 and 65 names; maybe possibly 70. 

Q. Did you count the names on Mr. Gleichman's 
sheet, Mr. Wood? 

A. I observed that the first sheet was 25 or 30 
per cent filled. 

Q. Yes. 

A. Xo, that was 25 or 30 per cent of the length 
of the full sheet was filled with names, the second 
sheet was filled with names, the third sheet was 
filled Vvitli names down to Avithin, oh, two or three 
inches of the bottom of the page. 

Q. Did Mr. Gleichman give you any reason for 
vv^anting to have you remove these men? 

A. Well, he said they were in bad standing, that 
they were no good, and that they — a lot of them 
weren't up in their dues, and I terminated the con- 
versation as quickly as I could. 

Q. Well, 

Mr. Kowell (Interposing) : Let him finish his 
answer. He [638] is doing fine. 

Mr. Royster : This is very interesting. 

Q. (By Mr. Hecht) : Can you be a little more 
concise, Mr. Wood? 

The Witness : Would you read back my answer ? 
(The answer referred to was read by the re- 
porter.) 

The Witness: In addition to that, I think he 
said there were a large number that were not mem- 
bers of the union. 

Q. (By Mr. Hecht) : I see. 

A. I think that is about the substance of the con- 



732 Colgate-PalmoJive-Peet Co. vs. 

(Testimony of Charles AVood.) 

versation, except lie kept reiterating bis demand 

that we release the whole list. 

Q. Eventually did you get a letter from the 
union? A. We did. 

Q. On what date? 

A. Mr. Altman reported to me that that morn- 
ing, over the phone, he had received a letter from 
the union demanding the release of, I think it was 
18 men. It might have possibly been 19. I have 
forgotten. That it was handed to him by Mr. Gleich- 
man. 

Q. Yes. And that is the number of men that 
you called into your office, I believe, on Septem- 
ber 1? A. Yes, sir. 

Q. Will you tell me what occurred on that oc- 
casion ? 

A. Well, I told Mr. Altman to [639] 

Q. (Interposing) : Oh, let me digress for a 
moment. 

When you were handed that list of 17 men did 
you again seek legal advice? 

A. When Mr. Altman phoned me that he had 
that list of names I told him — I was not at the 
factory, I was home — that was again a Satur- 
day. I do not usually go to the plant on Satur- 
days. 

Q. Yes. 

A. And I told him, '^Sit tight until he heard 
from me." 

Q. Yes. 

A. I attempted to contact Mr. Crum, who was 



xV. L. B. B. et al 733 

(Testimony of Charles Wood.) 

oTir attorney, and lie was out of the city. I was 
advised, I think, that he was at his summer home. 
I was unable to get him. Mr. Altman called me 
again, and I told him to continue to wait, that I 
wanted to get hold of Heide and see if we could 
prevail upon him to cancel the request. 

Well, he says, "Mr. Grieichman is iJutting the heat 
on me pretty heavy for immediate action." Well, 
I says, "He is not offering to kill you," or words 
to that effect. And he says, "No." Well, I says, 
"You sit tight until you hear from me." 

I think there were several such conversations un- 
til about 1:30 Mr. Altman called me again and 
says that he was unable to hold Mr. Gleichman off 
any longer, that he wanted to — us to take immedi- 
ate action. Well, I says I had been [640] trying 
to get Mr. Heide and I had been unable to do so. 
"I think I will come down." 

Well, he says, "Do you want me to call Railey 
and get him to come over?" Well, I says, "I think 
that will be a good idea. You might get him at the 
Claremont Country Club." 

He called the Claremont Country Club and evi- 
dently got Mr. Railey. 

I changed my clothes and shaved and came down 
to the plant and found Mr. Railey there in his of- 
fice when I got there. I was shown the letter, and 
we discussed the procedure that we would follow 
to let out such a large group of men. 

Mr. Railey wanted to soften the blow as much as 
possible. A lot of them had been there a long time 



734 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

and he didn't like them to think we were just 
throw^ing them out without any consideration. So 
it was decided that we would call them down into 
his office. And Mr. Altman took the responsibility 
of having all these people notified that they should 
come down. It took some little time to gather them. 
But after they got there, why, we showed them the 
letter and told them that we were very sorry but 
under the terms of our contract we had no alterna- 
tive except to abide by its terms. 

Q. Were Mr. Carter and Mr. Stanberry there? 

A. Mr. Carter and Mr. Stanberry were in the 
office, Mr. Railey was there, Mr. Altman, was there, 
and these 18-odd people that — I don't need to re- 
cite their names, do I? [641] 

Q. No. Did you at any time during the course 
of that meeting state to anyone present that the rea- 
son they had gotten into this mess was because they 
were wearing A. F. of L. buttons'? 

A. I did not. 

Q. Did you hear Mr. Railey make such a state- 
ment? A. He did not. 

Q. Did you hear Mr. Altman make such a state- 
ment ? A. I did not. 

Q. Is it possible that they could have made such 
a statement and you can't remember it now? 

A. I would have remembered it if I heard it. 

Q. Did you hear Mr. Railey state that you hadn't 
wanted the union in the first place and the employees 
now could take the consequences? 

A. Mr. Railey made no such statement. 



N. L. R. B. et al 735 

(Testimony of Charles Wood.) 

Q. Was anything said by any one of these 18 
employees that were there present at the time? 

A. Well, I should say so. When they first 
started, came in, Mr. Railey said a few words to 
them, and then he asked me to sit down in his chair 
and explain to them the whole situation. I read 
the laws out of the contract, and told them again — 
as a matter of fact, I think that statement was 
made repeatedly in the meeting, that under the 
terms of the contract we had no alternative except 
to accede to the demand [642] of the union with re- 
spect to suspending these men until the case had 
been settled. The longer the meeting lasted, why, 
the louder it grew, and it was not a great while 
before everybody was talking in loud tones of voice, 
and except the people you were talking to it would 
be very difficult to tell what anybody else was saying. 

Q. Mr. Wood, you were present here when Mrs. 
Kay Norris made the statement 

A. I was, yes. 

Q. Or, rather, testified that she made certain 
statements to you. Did you make such statements? 

A. I have forgotten what they were. 

Q. She had asked you whether the reason they 
were being put in bad standing was because they 
had worn A. F. of L. buttons and distributed A. F. 
of L. literature? 

A. I don't remember of her having said that. 

Trial Examiner Ruckel: Just a moment. 

Q. (By Mr. Hecht) : You have heard her tes- 
timony that you said, "Maybe that is the reason?" 



736 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

A. No, I don't recall any such statement. 

Q. I see. When you called Paul Heide about 
this list of 18 did you ask him the reason why these 
men and women were being put in bad standing *? 

A. I did. 

Q. What answer did you get from Heide "? [643] 

A. He said that they had violated their oath, the 
constitution and by-laws and their oath of office, 
their office of — the oath they took upon initiation; 
excuse me. 

Q. Did you make a bona fide effort, Mr. Wood, 
to press Mr. Heide for further details'? 

A. I certainly did. 

Mr. Royster: I object to the form of that ques- 
tion. 

Trial Examiner Ruckel: Objection sustained. 

Q. (By Mr. Hecht) : Well, did you make any 
further effort '^ 

A. I made further ones, yes, and I had made 
previous ones. 

Q. And that is the most satisfactory answer 
you got? 

Mr. Royster: I object to that. That is leading, 
for one thing, and suggestive. 

Q. (By Mr. Hecht) : Well, that is all you got? 

A. That is the only answer I ever got. 

Q. All right. On September 1, 1945, or let us 
even carry it further, September 15, 1945, had you, 
Mr. Wood, formed any definite opinion for the rea- 
son why these men were being put in bad stand- 
ing by the union? 



N. L. R. B. et al 737 

(Testimony of Charles Wood.) 

A. No, I hadn't. I was somewhat bewildered. 

Q. What was the reason for your bewilderment? 

A. Well, I didn't think that it was only for 
union activities alone, or anti-union activities alone, 
because many jjeople had not been disturbed that 
I had o]3served wearing buttons and passing out 
literature. [64-1] 

Trial Examiner Euckel: What kind of buttons 
and what kind of literature? 

The Witness : The A. F. of L. buttons. 

Q. (By Mr. Hecht) : Are some of those persons 
still in your employ, Mr, Wood ? A. They are. 

Mr. Hecht: Do you gentlemen care for the 
names '? 

Mr. Eoyster: I don't want them. 

Trial Examiner Ruckel: What is the question? 

Mr. Rowell: The question is, who passed out 
A. F. of L. buttons in the plant. 

Mr. Hecht: That are still in the employ of the 
company. 

Trial Examiner Ruckel: What w^as your ques- 
tion? 

Mr. Hecht: I was asking the gentlemen 

Mr. Rowell (Interposing) : If he knows them. 

Mr. Edises: I submit it w^ould be a matter of 
development by counsel for the prosecution if they 
have any questions as to 

Trial Examiner Ruckel (Interposing) : I think 
we better leave it there. I think it is of some im- 
portance that there were others who wore buttons 
and passed out literature whose discharge was not 



738 Colgate-Palm olive-Peet Co. vs. 

V Testimony of Charles Wood.) 

requested. It might have been that they subse- 
quently got themselves in good standing. I don't 
know. 

Q. (By Mr. Hecht) : Did those persons, Mr. 
Wood, to whom you have reference, continue to 
wear the A. F. of L. button and [645] pass out the 
A. F. of L. literature up to and including the date 
of the election? A. They did, sir. 

Q. Are those persons still in your employ? 

A. They are. 

Mr. Hecht: Mr. Examiner, may we go off the 
record ? 

Trial Examiner Ruckel: We will recess for 10 
minutes. 

(A short recess was taken.) 

Trial Examiner Ruckel: Read the last question 
and answer, please. 

(The question and answer referred to were 
read by the reporter.) 

Trial Examiner Ruckel : Any further questions ? 

Mr. Hecht: Yes, Mr. Examiner. 

Q. (By Mr. Hecht) : Reverting to that meet- 
ing, so-called, of September 1, 1945, have you cov- 
ered all of what was said in your recollection at that 
meeting, Mr. Wood? 

A. Well, having in mind the statement that Mr. 
Railey is accused of making, I recall that Kay Nor- 
ris started quite a discussion about the legality of 
the contract, and said that she had taken — ^had legal 
advice, she had a lawyer of her own that knew more 



.V. L. R. B. et al 739 

(Testimony of Charles Wood.) 

about it than our lawyers or the CIO lawyers 
either, and that they said that the contract was no 
good. And throughout the whole meeting there was 
a whole lot of recriminations all over the room. You 
heard different [646] people saying that the offi- 
cers of the CIO were a bunch of Communists and 
a bunch of crooks and they didn't properly ac- 
count for the money, and she was among those that 
said it. And then the remark was repeatedly made, 
"Well, what good has the union done us for the last 
three years'? We have been paying dues month 
after month and they haven't gotten us any raises 
in pay." 

Well, I turned to her then and I said, "Well, it 
is your union; it is not ours." 

Trial Examiner Ruckel: Did you say something 
about having selected the union in the first place, 
something to that effect? 

The Witness : No, I did not. 

Trial Examiner Ruckel: I think yesterday the 
word "selected" was used in some connection. I 
don't remember. 

The Witness : No, I did not. I do not recall that 
language. I said, "It was your union." I mighl 
have said, "You picked it." I did say that it was 
not ours. 

Q. (By Mr. Hecht) : Mr. Wood, were you pres- 
ent yesterday or the day before (I don't recall) 
when Mr. Henry Hellbaum was present? 

A. Yes. 

Q. Do you recall his testimony ? A. I do. 



740 Colgate-Palmolive-Peei Co. vs. 

(Testimony of Charles Wood.) 

Q. With reference to a conversation had with 
you? [647] A. Yes. 

Q. Will you give us your version of that conver- 
sation and the incidents leading to it? 

A. Well, somebody called me on the phone and 
told me that Hellbaum was down in the basement 
and was holding a meeting of the entire group of 
employees in that department. I think it was Grube 
that called me. Well, I says, "Eun him out of tliere. 
They have no business doing that in working hours, 
and I will come do^vn and talk to him." 

I went down to the basement, and by the time 
I had gotten there the meeting had broken up, and 
Plellbaum was no longer there. I then went down 
to the boiler room and looked around for him. He 
was not there. And I asked where he was. I think 
one of the foremen, it was, that told me, "Well, 
you will find him in the Toilet Articles Depart- 
ment now." 

I went over to the Toilet Articles Department, 
and he was there with a small group of employees. 
And I called him to one side and told him that the 
company had got to remain neutral, and that it was 
impossible to let him around assembling the em- 
ployees for the purposes of electioneering." 

Q. This was a work period at the plant? 

A. A work period, yes. 

Q. Was Mr. Hellbaum supposed to be at his 
work at that time? 

A. Well, I also suggested that he better get 
back in the [648] boiler room where he belonged. 



.V. L. R. B. et al 741 

(Testimony of Charles Wood.) 

that he had had a bad accident down there once 

and we didn't want a repetition of it. 

Q. As to the five shop stewards and the four 
committeemen, did you eventually get word from 
the union, or from some union representative as 
to their status in the union, final statvis in the union ? 

A. I did. 

Q. And what information did you get with re- 
spect to them, and about when, Mr. Wood? 

A. Well, it was around, oh, I should say the 
middle of November. My memory is hazy when it 
occurred. 

Q. Yes. 

A. It might have been a little later, it might 
have been a little earlier, but I was told that they 
had refused 

Q. (Interposing): Who told you, Mr. Wood? 

A. George Squires, one of the stewards, one 
of the present stewards in the plant, and who was 
steward at that time. I was told, as I remember it, 
that they had refused to stand trial and had been 
expelled from the union. 

Q. Did he tell you as to the charges that had 
been made against them"? 

A. I think he did, that they had been derelict 
in their duty as stewards and hadn't carried out 
the anti-discrimination, racial discrimination pol- 
icy, and that they had been involved in a strike 
durng the war. [649] 

Q. Yes. 



742 Colgate-Pahnoiivc-Peet Co. vs. 

(Testimony of Charles Wood.) 

A. Controvening the no-strike pledge of the 
union. 

Q. Did you eventually find out with respect to 
the status of the people who had been put in bad 
standing on August 30, 31, September 1? 

A. I did. 

Q. x\nd on what date did you receive such in- 
formation ? 

A. Oh, it was in early January, I would say. 

Q, And who gave you that information? 

A. George Squires and Ed Bopp told me, not 
together, but separately. 

Q. And what was the nature of that informa- 
tion? 

A. Well, that a certain number of them had 
stood trial and had been — had pleaded guilty and 
had been — there had been some arrangement made 
whereby they would be permitted to work out of 
the union hall. 

Q. How about the others? 

A. And that the others had refused to stand 
trial, and I believe that they had been expelled 
from the union. 

Q. And were you advised specifically or gener- 
ally as to the nature of the charges ? 

A. Yes, I asked them, and it was the no-strike 
pledge and also the anti-discrimination policy for 
some of them. 

Q. Have you since that time heard anything 
else? 

A. Well, I believe we got a notice from the 



N. L. R. B. et al 743 

(Testimony of Charles Wood.) 

union, too, [650] advising us of the results of the 

trial. 

Q. Are you a subscriber to or do you receive the 
ILWU Dispatcher % A. I do, sir. 

Q. Did you read an account of the so-called trial 
or hearing'? 

A. I read the account in that paper. 

Q. All right. Have you ever been advised cate- 
gorically by anyone that these men were placed in 
bad standing because of their A. F. of L. activities ? 

A. I was not. 

Mr. Hecht : I think that is all. 

Mr. Edises : I just have one or two minor things 
I would like to ask you about. 

Q. (By Mr. Edises) : You stated that the list 
that Mr. Gleichman showed you had — I think you 
mentioned the figure of around 75 or 74? Is it pos- 
sible that the number on that list was 44"? 

A. It might be possible. I wouldn't be exact be- 
cause I didn't have an opportunity to count them. It 
was just a glance taken trying to visualize the num- 
ber of lines on the paper that were filled out. 

Q. Yes. 

A. And then counting them aftei*wards on one 
of my own sheets. 

Q. O.K. In connection with this complaint made 
by Mr. [651] Grube, that there was a meeting be- 
ing held, was that meeting being held in his depart- 
ment, Mr. Grube 's department? 

A. That is what he said. 

Mr. Edises: That is all. 



744 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

Trial Examiner Ruckel: Questions by the 
Board ? 

Cross-Examination 
By Mr. Royster: 

Q. Has Board's Exhibit 7 ever been posted in 
your plant, Mr. Wood? 

A. (Examining Document) : I believe it was 
a mimeographed copy; mimeographed copies were 
made and handed to all the members. 

Q. Was it ever posted on your bulletin board f 

A. My recollection is that it was. 

Q. Do you remember about when it was posted? 

A. A few days after it was executed. 

Q. Yes. That was in 1941? A. Yes. 

Q. And do you recall how long it remained 
posted? A. I wouldn't pretend to say. 

Q. Now, Mr. Wood, I am going to read a pov- 
tion of a paragraph in Board's Exhibit 14 and then 
ask you a question about it. I am reading from 
Paragraph 4 of the appropriate unit: " all pro- 
duction, maintenance, warehouse, mechanical and 
laboratory employees at the comj^any's Berkeley, 
California, plant, including non-technical and non- 
professional [652] laboratory employees, watchmen, 
assistant foremen, and working foremen, but ex- 
cluding office and clerical employees, chemists, fore- 
men and all or any other supervisory employees 
with authority to hire, promote, discharge, disci- 
pline, or otherwise effect changes in the status of em- 
ployees, or effectively recommend such action, con- 



N. L. E. B. et al 745 

(Testimony of Charles Wood.) 

stitute a unit approi3riate for the purposes of col- 
lective bargaining v>itbin the meaning of Section 
9(b) of the Act." 

Now, is that the bargaining unit which is now 
covered and has been covered by the contract with 
the ILWU'? 

Mr. Hecht: Don't answer, Mr. Wood. 

A. I 

Mr. Hecht: Don't answer, Mr. Wood. 

Trial Examiner Ruckel: There is an objection. 
The contract is in evidence. 

Mr. Hecht: The contract is in evidence. That 
would be asking for the conclusion of the witness 
on a matter that the Board has to determine. 

Mr. Royster: This witness is the manager and 
the director of labor relations. 

Mr. Hecht: Do you w^ant to qualify him and 
make him your own witness? 

Mr. Royster: You qualified him. 

Trial Examiner Ruckel: Let's hear counsel. 

Mr. Royster: He is the director, as I say, of la- 
bor [653] relations for the company, and I certainly 
submit that he is competent to tell us what unit 
was covered by the ILWU contract. 

Mr. Edises: We will join in the objection. 

Trial Examiner Ruckel: What is the reason for 
the mental exercise? 

Mr. Royster: I want to know whether or not 
foremen have been excluded from the coverage of 
that contract. 



746 Colgate-Palmolivc-Peet Co. va. 

(Testimony of Charles Wood.) 

Mr. Hecht: Well, you excluded them, not the 
manager of labor relations at this 

Mr. Royster : Well, Mr. Hecht, I know what the 
Board has done. I am asking this witness what the 
practice is. 

Mr. Hecht: I still object to the question, Mr. 
Examiner. 

Trial Examiner Ruckel: Well, the objection has 
been sustained to one question, but there is another 
question now concerning foremen. 

Q. (By Mr. Royster) : Mr. Wood, have fore- 
men been included in the bargaining unit repre- 
sented by the ILWU at your plant! 

Mr. Edises: Objected to on the ground the con- 
tract speaks for itself. 

Trial Examiner Ruckel: Objection sustained. 

Mr. Royster: Well, let's see if the contract 
speaks for itself. 

The contract says, Section 2, "The union is here- 
by [654] recognized as the sole collective bargain- 
ing representative for all employees covered by 
this agreement." 

Now, does that sort of double talk describe a 
unit *? 

Mr. Edises : Well, now, I would like to point out. 

Trial Examiner Ruckel: What is the relevance 
anyway *? 

Mr. Edises: I would like to point out to the 
Board's representative that if he is interested in 
the question of what employees are covered by the 
agreement there has been from time to time exe- 



.V. L. E. B. et al 1^1 

(Testimony of Charles Wood.) 

cuted — not executed, but simply a list typed of 
agreed wage categories which shows the various 
persons who were covered by the agreement. 

Mr. Royster: But, Mr. Edises, I believe that 
no such wage classifications are to be found in the 
contract as introduced and admitted in evidence, 
so, therefore, the contract does not speak for itself. 

Trial Examiner Euckel: Well, let's get down to 
cases. You are talking with reference to this fore- 
man, whoever he is. 

Mr. Hecht : Charles Grube, I imagine is the per- 
son, Mr. Examiner. 

Trial Examiner Ruckel: Grube. Well, suppose 
that he is a member of the Union and not in the 
appropriate unit, what difference does it make? 

Mr. Royster : Well, he is excluded from the unit 
because he is a foreman. [655] 

Mr. Edises: I would like to know the signifi- 
cance of that. 

Trial Examiner Ruckel: He can still belong to 
the union. 

Mr. Royster: Certainly he can belong to the 
union, so can Mr. Wood belong to the union. 

Trial Examiner Ruckel: Apparently Mr. Grube 
does belong to the union. 

Mr. Royster: Yes. That doesn't make him ])y 
that fact alone not a representative of the company, 
and it doesn't excuse the company for anything that 
Mr. Grube may have done. 

Trial Examiner Ruckel: Are you addressing 
yourself now to the so-called espionage allegations'? 



748 C olgate-Palmolive-Peet Co. Vb. 

(Testimony of Charles Wood.) 

Mr. Royster : Not necessarily. There is testi- 
mony in the record of several instances which con- 
cern Mr. Grube. 

Mr. Edises : I submit that my recollection is that 
Mr. Grrube was mentioned in connection with this 
incident of sitting outside the union hall. 

Mr. Royster : He was. 

Mr. Hecht : He also was mentioned by Mr. Hell- 
baum. Mr. Hellbaum charges Mr. Grube with tell- 
ing him to get the hell out of his department with 
that AF of L button, or words to that effect. It is 
in the record. 

Mr. Royster: There was testimony by Mr. 
Periera too as to 

Mr. Hecht: That was Periera, I think. I was 
mistaken [656] about Hellbaum. 

Trial Examiner Ruckel: I don't quite see the 
force of it anyway. As far as getting out of the de- 
partment, that clearly was his prerogative as a fore- 
man, if he was a foreman. 

Mr. Royster: Of course. 

Trial Examiner : Irrespective of whether he was 
a member of the union. 

Mr. Royster: No, but Mr. Hellbaum testified, 
if I recall it correctly (and, of course, the record 
will show whether I am correct or not) that he ac- 
cused Mr. Grube of telling employees working under 
Mr. Grube that they must take off their AF of L 
buttons or go home. The testimony of Mr. Hell- 
baum was that Mr. Grube admitted that statement. 
Now, the question becomes pertinent, it seems to me, 



N. L. R. B. et al 749 

(Testimony of Charles Wood.) 

and material as to Mr. Grube's authority, and one 
criterion with respect to his authority, I think, can 
be found by reference to whether or not he was in 
the bargaining unit. 

Trial Examiner Ruckel : Well, if you argue that 
way then you would say that he had little or no 
authority because he was in the bargaining unit. 

Mr. Royster : Well, I say that he was not — I am 
asking this witness. 

Mr. Edises: I submit, Mr. Examiner, that 

Trial Examiner Ruckel: Well, let's find out, if 
it is [657] important, if he is a foreman or if he 
isn't a foreman, irrespective of whether he is in the 
unit or not. 

Mr. Hecht : It is stipulated he is a foreman. 

Mr. Edises : He is a foreman in charge of a 
small department. 

Trial Examiner Ruckel : Is it also stipulated, or 
is it a fact that he was in the union? 

Mr. Edises: He was in the union, and, as the 
testimony of one of the Board's own witnesses indi- 
cated, he was one of the founders of the union at 
Peet's and very active as an officer and committee- 
man in the miion until he was promoted not so very 
long ago. 

Mr. Royster: That is correct. 

Trial Examiner Ruckel: Now, as to whether he 
was in the unit or not, that doesn't have to be de- 
cided now, does it ? I mean, is it important whether 
he was in the unit or not? If he was a supervisor, 
we have the essential facts to make a determination 



750 Colgate-PalmoUve-Peet Co. vs. 

(Testimony of Charles Wood.) T 

whether a statement that he makes amounts to in- 
terference, restraint, or coercion or not. 

Mr. Royster: I would like to ask another ques- 
tion or two which I think will not be objectionable. 

Q. (By Mr. Royster) : You do have assistant 
foremen? A. We do. 

Q. And you have a classification known as work- 
ing foremen? 

A. That is the mechanical gang only. [658] 

Q. Has Mr. Grube a classification either of as- 
sistant foreman or working foreman? 

A. ¥v^ell, that has been a moot question, whether 
he was a working foreman or not. 

Q. Well, how is he classified, or do you knovv? 

Mr. Edises : Well, I suggest that — excuse the in- 
terrupation, counsel. I should address this to the 
Examiner. 

Mr. Examiner, I suggest that the witness be per- 
mitted to continue with his answer explaining what 
he means by his status as working foremen being a 
moot question. 

Mr. Royster : Well, now, Mr. Examiner, perhaps 
this will serve to straighten it out — I am not trying 
to confuse this witness. 

Q. (By Mr. Royster) : Are foremen at the 
plant classified definitely as foremen, working fore- 
men or assistant foremen? 

A. Well, I wouldn't say absolutely definitely. 
There is more or less of a loose classification. 

Q. Is there a payroll classification of those 
three ? 



N. L. R. B. et at 751 

(Testimony of Charles Wood.) 

A. They are on the monthly payroll. 

Q. All on the monthly payroll? 

A. Yes, the whole group. 

Q. Now, Mr. Wood, you testified that when Mr. 
Gleichman showed you a list, which you first iden- 
tified you estimated held from 60 to 75 names, that 
you saw the names of some key men on there, and 
that disturbed you? [659] A. Yes. 

Q. And that you later by counting the number 
of lines on the sheet of 18 by 131/4 paper, I believe 
you said it was estimated the number of people who 
came on there. Now, on further direct examination 
by Mr. Edises that number, you quickly agreed, 
might have been 44? 

A. Now, I told you that I had to look at the 
thing very quickly. I am refusing to take the sheet, 
but at the same time I was trying surreptitiously 
to see how many were on it, and I am not sure. 
When a paper is turned like that, and turned 
quickly, if you look at it, maybe those names didn't 
go down as far as my recollection went. 

Q. Well, you got a good enough glance at that 
paper to pick out the names of some key men, did 
you not? 

A. I think so, yes. There was some of the men 
I didn't want to have go. 

Q. And on the basis of that glance or look, or 
quick scrutiny, you made a calculation, and your 
calculation was from 60 to 75 names? 

A. Yes. 

Q. Mr. Vv^ood, do you consider that the ILWU 



752 CoJgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

broke its no-strike pledge to the Colgate-Palmolive- 

Peet Company, or to the President, rather? 

Mr. Edises: Now, just a moment. 

A. That is a question of law, I thmk. [660] 

Mr. Edises: Just a moment. I was napping at 
the time that was asked. Would you mind reading 
that back to me ? 

(The question referred to was read by the 
reporter.) 

Mr. Edises: Now, I will object to that. 

Trial Examiner Ruckel: Objection sustained. 

Mr. Royster : AVell, for the purpose of the record 
I will state that I think the question is proper for 
the reason that the ILWU is in here with its head 
hung low, it has been disgraced by a strike which 
was held at the Colgate-Palmolive-Peet Plant, and 
I believe that this witness would, if permitted to 
answer, testify that it did not consider the strike 
pledge had been broken because it was not a strike 
of ILWU. 

Trial Examiner Ruckel: Well, the witness 
might not be the arbiter of whether the situation 
was sufficient to warrant the CIO's head being held 
low. 

Mr. Edises: I don't feel, Mr. Examiner, that I 
should let that pass, because although it may seem 
like a subject for levity to Mr. Royster, I can as- 
sure the Examiner that the ILWU is j)rouder of 
nothing in the world than the fact that its members 
had a 100 per cent record of adherence to that no- 
strike pledge during the war, and that this is the 



N. L. E. B. et al 753 

(Testimony of Charles Wood.) 

only black mark on the escutcheon of the ILWU. 
And I assure you it is a matter of great seriousness 
to us, and we don't like it being treated with the 
kind of levity that has been displayed. [661] 

Mr. Rowell: What about a man coming around 
and asking for the discharge of 60 to 70 people in 
a war plant? 

Mr. Edises: I don't care to engage in colloquy 
with you, Mr. Rowell. 

Trial Exammer Ruckel: Are there any further 
questions ? 

Mr. Royster: Yes. 

Q. (By Mr. Royster) : Mr. Wood, you testified 
that for some considerable period prior to July 30 
you had heard that the stewards at the plant had 
done certain things which had occasioned the dis- 
pleasure of the ILWU. And you mentioned in that 
connection (if my memory serves me correctly), 
violation of the no-strike pledge. 

Did you misspeak yourself there, or do you con- 
sider, or did you consider that the stewards had 
violated this no-strike pledge? 

Mr. Edises : Now, just a moment. I am going to 
object to that question again on the ground that it 
is immaterial whether Mr. Wood considered that 
the stewards had violated the no-strike pledge, or 
whether he 

Trial Examiner Ruckel: I don't think it is ma- 
terial whether the company considered that the 
union had broken the pledge or not. It is a question 
of what the union considered. 



754 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

Mr. Edises : It is simply an indirect way of get- 
ting an answer to the same question that has just 
been objected to and [662] objection sustained. 

Mr. Koyster: No, it isn't, Mr. Edises. Mr. Wood 
testified, if my memory serves me, that he had heard 
some talk or rumors about the stewards violating 
the racial non-discrimination policy of the union, 
and in that connection that they had in some way 
violated the no-strike pledge. 

Q. (By Mr. Royster) : Novv, is that correct, Mr. 
Wood? Was that your understanding'? 

Trial Examiner Ruckel: I think the witness 
testified that he read in the paper that these men 
had been accused of that, that is, by the union. The 
respondent was not accusing the men of breaking 
the no-strike pledge. 

Mr. Royster: Well, that is not my recollection, 
Mr. Examiner. Of course, the record will show 
what was said. 

I believe that is all. 

Q. (By Mr. Rowell) : Before these occurrences 
that began on July 28 and July 30, in connection 
with your job as labor relations supervisor, did you 
have occasion to learn among the employees any 
information as to either the union's charges against 
the employees or employees' charges against the 
union ? 

Mr. Edises: Objected to as too general and 
vague and speculative, impossible to determine what 
he is asking for from the question. 

Trial Examiner Ruckel : Objection sustained. 



A^ L. R. B. et al 755 

(Testimony of Charles Wood.) 

Q. (By Mr. Rowell) : Well, now, your jo)3, as 
you testify, was in connection witli labor relations 
at the plant ? A. Yes, sir. 

Q. Did you have any occasion in connection with 
that job to find out how the labor relations wei'e 
going '? 

Mr. Edises: Same objection. 

A. I don't get that at all. 

Trial Examiner Ruckel: Just a moment. Objec- 
tion sustained. 

Q. (By Mr. Rowell) : Had there been an at- 
tempt during 1945, earlier in the year, to obtain a 
wage increase? 

A. Well, I would have to ask you to qualify that 
more definitely. You mean a general increase or 

Q. (Interxjosing) : I mean any increase? 

A. There had been a request early in the year 
for an increase in wages for women and for second 
and third shift workers, and negotiations for that 
went over quite an extended period. 

Q. Who made the request ? A. The union. 

Q. Was the wage increase granted? 

A. Yes. 

Q. In connection with those negotiations at that 
time did you have occasion to learn anything of the 
employees ' attitude toward desiring wage increases ? 

Trial Examiner Ruckel : What is the purpose ? 

Mr. Rowell: I beg your pardon? 

Trial Examiner Ruckel : I asked as to the mate- 
riality of the question. 

Mr. Rowell: The materiality is just this: It 



756 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 
seems to me that the evidence is clear in the case 
so far that the employees were dissatisfied with the 
union, as well as the union having been dissatisfied 
with the action of some of the employees. 

Mr. Edises: Mr. Examiner, I will stipulate for 
counsel that the employees wanted wage increases, 
and that they wanted a number of other things, and 
that in all probability they wanted a number of 
things, including wage increases. I think that is a 
safe stipulation in almost any case involving labor 
relations. 

Mr. Rowell: Well, I will accept the stipulation, 
but I would like to fill it out a little bit now by ask- 
ing the witness some more questions. 

Mr. Hecht : I think it is too remote, incompetent, 
irrelevant, and immaterial. 

Trial Examiner Ruckel: What are you getting 
at ? We are not going to try the merits 

Mr. Rowell : By no means. The crux of the case 
is that these employees became dissatisfied with the 
union and withdrew from it and joined another one. 

Trial Examiner Ruckel: Well, apparently some 
of them did. 

Mr. Rowell: That is quite true. 

Trial Examiner Ruckel: I mean that is not in 
dispute, is it? 

Mr. Rowell: By no means. I am going to find 
out what Mr. Wood knows about it. 

Trial Examiner Ruckel: Well, ask him, I mean 
as to whether or not they were content with their 



N. L. E. B. et al 757 

(Testimony of Charles Wood.) 

wage status or something else now. If you want to 

explore his knowledge of this 

Mr. Howell: Mr. Examiner, if you are going to 
restrict cross-examination so I have to just be satis- 
fied with the answers that Mr. Wood gives his own 
counsel, I will just have to cease and desist. 

Trial Examiner Ruckel: I am not going to re- 
strict you, but go ahead, but don't ask him the 
merits of these wage controversies. 

Mr. Rowell: Then I will stipulate that the pur- 
]30se of the cjuestion is not on the basis of the merits 
of the wage controversy at all. 

Trial Examiner Ruckel : If you ask the question, 
I will make the rulings. There is no question pend- 
ing now. 

Q. (By Mr. Rowell) : Did you have an occasion 
to learn earlier in 1945, Mr. Wood, that the em- 
ployees were making certain [^GGG"] demands that 
the union was not satisfying, in other words, de- 
mands of the company for wage increases, or on any 
other matter? 

Mr. Edises: I will object to that on the groimd 
fhat it would be comprehensible on its face. The 
union is not the one who is responsible for the wage 
increases, the company is the one who is responsible 
there, and during the war the government. 

Trial Examiner Ruckel: Objection sustained. 

Q. (By Mr. Rowell) : Is it your jjractice to 
walk around through the plant ? 

A. Generally once a day I try to make the 
rounds. 



758 Colgafe-Pahnolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

Q. In the course of that do you talk with em- 
ployees in the plant? A. Occasionally. 

Q. Do you talk with them about labor relations 
matters? A. Sometimes with the stewards. 

Q. Did you talk ^\ith any of these five stewards 
in the early part of 1945 concerning labor relations 
matters ? 

A. Indeed I did. There was something going on 
all the time. 

Q. Can you tell me what you mean by "some- 
thing going on all the time?" 

A. Well, tliey were always making requests for 
something, to have a girl transferred here, or a girl 
transferred there, [667] or this one was doing too 
much work, or 

Q. (Interposing) : These five stewards were ac- 
tively pursuing their jobs as stewards, so far as you 
know? A. I wouldn't put it that way. 

Q. Well, what way would you put it ? 

A. Well, I thought they were trying to harass 
the company. 

Q. Did they at any time during those discussions 
with you indicate dissatisfaction with the ILWU 
union? Was there any discussion of that kind? 

A. Well, I won't say that they manifested dis- 
satisfaction with the union, but they did make criti- 
cisms of the union officers. 

Q. On how many occasions can you remember 
criticisms having been made of union officers? 

A. That would be pretty hard to say; on numer- 



N. L. R. B. et at 759 

(Testimony of Charles Wood.) 

ous occasions, and several times in connection with 

certain matters. 

Q. Yes. This was during the tirst half of 1945, 
I mean it was before these 

A. Well, I wouldn't say definitely whether it was 
just confined to the first half; for quite a number 
of months, I would say. 

Q. Before July 30, let us say? A. Yes. 

Q. Yfere such criticisms made during 1944? 

A. To the best of my recollection I would say 
^'Yes." [668] 

Q. Did you have occasion to talk with employees 
other than the five shop stewards with regard to 
that matter ? 

A. About union matters, you mean"? 

Q. Yes. 

A. You mean about union matters? 

Q. Yes. A. No. 

Q. Was it and is it your practice to observe the 
bulletin boards in the plant ? 

A. More or less, yes, incidentally, walking 
through. 

Q. Did you also observe whatever union litera- 
ture might have been being distributed about the 
plant? A. I was handed some. 

Q. Were you handed any AF of L litv^^rature ? 

A. Yes. 

Mr. Edises: Well, I submit that we ought to 
have the time fixed for a question of that sort. 

Mr. Hecht: I assume he means the time of the 
campaign. 



760 Colgate-Pahnolive-Peet Co. vs. 

(Testimony of Charle>s Wood.) 

Mr. Edises: I, frankly, can't see the relevance 
of all this line of testimony, but I have not objected 
heretofore because I was trusting that Mr. Rowell 
would not prolong it. 

Mr. Rowell : It won 't be long prolonged. 

Q. (By Mr. Rowell) : Can you fix the approxi- 
mate time when you received any AF of L litera- 
ture? 

Trial Examiner Ruckel: The period? [669] 

A. Well, it was during the time that these 
various bulletins were being distributed. 

Trial Examiner Ruckel: That doesn't very ac- 
curately answer the question, does it ? During what 
period ? 

Mr. Rowell : Suppose we place the time by refer- 
ence to respondent's Exhibits 1 through 14? 

Mr. Hecht: It is August 7 to October 15, Mr. 
Rowell. 

Mr. Rowell: August 7 to October 15. That is 
the date of these various 

The Witness: What dates? 

Mr. Hecht: August 17 to October 15. 

The Witness: Yes, I would say that I undoubt- 
edly was handed them at that time. 

Q. (By Mr. Rowell) : Do you know whether or 
not any of the persons that you have seen passing 
the AF of L buttons around in the plant 

Mr. Hecht : Now, just a moment. Mr. Wood did 
not say he saw anyone passing AF of L buttons 
around the plant. 

Mr. Rowell: Well, I think he did. 



A^ L. R. B. et al 761 

(Testimony of Charles Wood.) 

The Witness: I did not. I never said anything 
of the kind. 

Mr. Rowell : Or wearing AF of L buttons. 

Mr. Hecht: You saw them wearing AF of L 
buttons ? 

The Witness: I saw them wearing them. 

Mr. Rowell: Well, that surprises me. [670] 

Q. (By Mr. Rowell) : I will ask you : You testi- 
fied that there were some people in the plant still 
working there that you saw wearing AF of L but- 
tons? A. Yes, sir. 

Q. Do you know whether or not their names were 
on Mr. Gleichman's list before you had it cut down? 

A. No, I do not. 

Mr. Edises: Just a moment. I object to that. 
There is no testimony in the record that this wit- 
ness had that list cut down. 

Trial Examiner Ruckel: Objection sustained. 
The answer may be stricken. 

Q. (By Mr. Rowell) : By the way, when you 
were talking to Mr. Gleichman about the extensive- 
ness of that first list that he was attempting to give 
you, you x^rotested about the etfect it would have on 
the company if you granted his request, did you *? 

A. I told him it was going too far, yes. 

Q. That it would have an effect on the produc- 
tion ? 

A. I don't think I went that far. I didn't spend 
any more time with him than I could help. I wanted 
to get rid of it, and get at some of the officers of 
the union. 



762 Colgate-Pahnolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

Q. Did you tell him the company was engaged 
in war business and discharging so many people 
would hurt it ? A. To whom <? [671] 

Q. Mr. Gleiclnnan? A. No. 

Q. To anyone else in the ILWU? 

A. Yes. 

Q. Who? A. Mr. Heide. 

Q. What was his answer to that*? 

A. Well, I don't recall. 

Mr. Rowell : I have nothing further. 

Redirect Examination 
By Mr. Edises : 

Q. Mr. Wood, your company has received copies 
of these decisions of the trial committee testimony? 

A. Yes, sir. 

Q. I think you testified approximately the first 
part of November and the first part of January? 

A. That is my best recollection. 

Q. Is that right? A. Yes. 

Q. This is the copy the company received, is it? 

A. (Examining document.) 

Q. And this is the other? 

A. Well, it was those, or some like that. 

Mr. Edises : All right. May I have these marked 
for identification, please? 

The decision of Trial Committee dated October 
10, 1945, [672] will you please mark that as Inter- 
vener's No. 6, and the decision of the Trial Com- 



N. L. R. B. et al 763 

(Testimony of Charles Wood.) 

mittee dated December 24, 1945, will you please 

mark that as Intervener's No. 7. 

(Thereupon the documents above referred 
to were marked Intervener's Exhibits Nos. 6 
and 7 for identification.) 

Q. (By Mr. Edises) : Now, the decision of Octo- 
ber 10 refers to, among other things, to testimony 
showing that Haynes, Luchsinger, Marshall, Moreau 
and Smith had "been working against the estab- 
lished policies of the union for a long time. For 
example, the union's policies against discrimination 
on account of race or color." 

Did you testify that you had some knowledge of 
such a beef? A. Yes. 

Q. Prior to the time that you received this? 

A. Yes, I did. 

Q. This exhibit? 

A. Yes, I have heard it. 

Q. It further states: "Back in the early part of 
1944 Marshall refused to take up the beef of a 
Negro member at Peet's named Harrison because 
he 'didn't like him,' the other stewards backed him 
up on this and all of them were taken before the 
grievance committee and found guilty of conduct 
unbecoming stewards and given a reprimand for 
their [673] treatment of this Negro brother." 

Mr. Eoweil: That is objected to, Mr. Examiner. 

Trial Examiner Ruckel : Let counsel finish his 
question. 

Q. (By Mr. Edises) : My question is whether 



764 Colgate-Palmolive-Peet Co. va. 

(Testimony of Charles Wood.) 

he had heard of that incident prior to the time 

when he saw this document? 

Mr. Rowell: Don't answer, Mr. Wood. I want 
to make an objection, that the questions that I put 
were for the purpose of finding out whether there 
was any dissatisfaction of the stewards with the 
union, and the union with the stewards, and had 
nothing' to do with 

Trial Examiner Ruckel: You put the question 
and he answered it. 

Mr. Rowell: had nothing to do with this 

attem^pt to discipline stewards. 

Trial Examiner Ruckel: No, this is something 
quite different. Are you objecting to it on the 
grounds of materiality? 

Mr. Ro^vell: I object to it as immaterial, yes. 

Trial Examiner Ruckel: Objection overruled. 

Mr. Edises: All right. 

Q. (By Mr. Edises) : The question is: Did you 
have any knowledge of this incident before you saw 
this document? A. Oh, indeed, I did. 

Q. The document goes on: "Then there was the 
Ulysses Norman case, where a union member at 
Peet's said out loud in [674] the dressing room that 
there are too many Negroes in the union, the quicker 
we get them out the better (only he didn't say 
* Negro.') Brother Norman, who is a Negro, filed 
charges against the brother who made this state- 
ment. Defendants Marshall and Sherman publicly 
defended the right of this member to make such 
attacks on Negro fellow members." 



iV. L. E. B. et al 765 

(Testimony of Charles Wood.) 

Did you hear anything about that beef? 

A. I heard about it. 

Q. Prior to the time that you received this 
document ? 

A. Oh, way back sometime ago. 

Q. At about the time it occurred, is that right? 

A. Well, I wouldn't say that. I don't know 
when it occurred, but it was several months ago 
that I first heard it. 

Q. Several months ago? A. Yes. 

Q. Prior to your receiving this? A. Yes. 

Mr. Rowell: Then I move to strike. The only 
materiality would be whether he heard of it before 
when the occurrence was allegedly occurring, be- 
fore the action of the company. 

Q. (By Mr. Edises) : You knew about this be- 
fore the stewards were dismissed, isn't that correct? 

A. Yes. 

Q. It further goes on to state: "There was a lot 
of evidence showing that all of the stewards fell 
way down on [675] the job when it came to carry- 
ing out the duties of their office. For instance, they 
refused to put Section 10 of the Peet's contract 
into effect, which called for setting up stewards for 
each department. They refused to select a chief 
steward as required by the contract." 

Did you know anything about such a beef? 

A. I knew that they refused to appoint a chief 
steward. 

Q. Did you know that this was a subject of con- 
troversy within the union? A. Yes, I did. 



766 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

Q. It further states "They showed poor judg- 
ment in regard to what grievances to present to the 
management. They pushed many phony grievances. ' ' 

Do you know that they had been charged with 
that by the union? 

A. I did not know they had been charged wtih 
it, no. 

Q. It states also: "They failed to attend meet- 
ings of the executive council, which was their duty 
as stev/ards, and also membership meetings." 

Did you have any knowledge of that? 

A. I had heard of that one. 

Q. You had heard that had been the subject of 
controversy within the organization'? 

A. Well, I had heard they had been charged 
with it. I wouldn't say about "controversy." [676] 

Q. This was prior to the time they were dis- 
missed ■? A. Yes. 

Q. Then it states further: "The union's political 
action program took a bad beating from the stew- 
ards. For instance, they refused to carry out the 
mandate of the union membership in regard to 
financial support for the National Citizens Political 
Action Committee. They sabotaged collection of 
funds for the defense of Harry Bridges of the 
ILWU. They opposed the program for x^iping out 
the Little Steel formula. They bucked the union's 
program in regard to enforcing OP A regulations." 

Now, had you heard of any such matters? 

A. I had heard of some of them; some of them 
I hadn't. 



iV. L. B. B. et al 7CT 

(Testimony of Charles Wood.) 

Q. You had heard that was a subject of con- 
troversy ? 

A. Some of them; not all of it I hadn't heard. 

Trial Examiner Ruckel: Some of it? 

The Witness: Yes. 

Q. (By Mr. Edises) : And it further states: 
*' Toward the end of May, 1945, they even refused 
to call a meeting of the employees at Peet's to dis- 
cuss current contract negotiations, air the griev- 
ances of the rank and file and elect stewards for 
the coming year. Brother Lou Gonick, business 
agent, demanded three separate times that they 
arrange to call such a meeting, but the stewards 
kept putting him off with phony excuses, and after 
they finally agreed to call a meeting they broke 
their promise, claimed they forgot all about calling 
the meeting." 

Did you hear anything about that? 

A. Give me that date again. 

Mr. Royster : I will object now. I guess I must 
have been asleep for 30 minutes. This is direct 
examination, and if ever a witness was being led 
by the nose, why, this one is. 

Mr. Edises: Mr. Examiner, I am simply asking 
him whether he had heard of these incidents re- 
ferred to in the union's decision prior to the time 
that these persons were discharged. Now, I sub- 
mit that it is not only relevant to the issues of this 
case 

Trial Examiner Ruckel: I don't see that it is 
leading. You may answer. 



768 C olgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

Mr. Edises: How else can I ask if he knew 
about it. 

Q. (By Mr. Edises) : Now, that was, accord- 
ing to this, toward the end of May, 1945? 

A. Would it be allowable for me to look at that ? 
You have asked so many things there that I can't 
-carry them all in my mind. 

Q. Yes. This part here (indicating). 

A. (Examining document) Yes. 

Q. Now, the question is: Had you heard about 
the grievance, about the refusal of the stewards to 
call a m.eeting toward [678] the end of May, 1945? 

A. I vrouldn't place the date, but I had heard 
that there had been quite a little controversy about 
having a meeting. 

Q. Well, it was your knovv'ledge about the time 
that this event happened, whatever date it may 
have been? A. Yes, I would say so. 

Q. And this decision further states: "In regard 
to the second set of charges, against Lonnberg, 
Olsen, Thompson and Sherman, the evidence showed 
that these four men were responsible for pulling 
the only wartime strike that members of this local 
ever were guilty of." 

Had you heard that these men had been charged 
with responsibility for pulling that strike? 

A. Yes, yes. 

Q. It further states: "On top of this, the evi- 
dence shows that three of these men, Sherman, 
Thompson and Lonnberg, made libelous and de- 
famatory charges against Paul Heide and other 



.V. L. B. B. et al 769 

(Testimony of Charles Wood.) 

officials of the union, such as being racketeers, loot- 
ing the union's treasury, and so forth.'' 

Had you heard that such charges had been made 
against officers of the union'? 

A. Will you mention the names again that those 
charges specify? 

Q. Against Paul Heide. 

A. No. The men that the charges were made 
against. [679] 

Q. "On top of this, the evidence shows that 
three of these men, Sherman, Thompson and Lonn- 
berg, made libelous and defamatory charges 
against Paul Heide and other officials of the union, 
such as being racketeers, looting the union's trea- 
sury, and so forth?" 

A. Not about those three, I had not heard it. 

Q. You had not heard that about these three 
men? A. No, I did not, no. 

Q. Had you heard that others of the persons in- 
volved in this case were accused of making such 
charges? A. Yes, I had heard that. 

Mr. Edises: I think that is all. I think he 
testified that he knew about the charges in regard 
to the wartime strike, which was the charge 

Trial Examiner Euckel : (Interposing) Are we 
on the record now, or off? 

Mr. Edises: I really shouldn't be. 

Trial Examiner Euckel: Off the record. 
(Remarks outside the record.) 

Trial Examiner Ruckel: On the record. 

Mr. Edises: Mr. Examiner, I will offer in evi- 



770 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

dence as Intervener's 6 the decision of trial com- 
mittee of the union, and as Intervener's No. 7 — No. 
6 is the decision dated October 10, 1945, and No. 7 
the decision of the trial committee dated December 
24, 1945. [680] 

I will stipulate that I do not make the offers for 
the purpose of establishing thereby the truth of the 
matters contained in the decisions, but simply as 
the decisions rendered by the trial committee of the 
union in the cases involving the individuals named 
therein. 

Mr. Royster: I would like to take a look at 
those. 

(Examining documents) On No. 7, is it true, 
Mr. Edises, that all of these individuals were found 
— all but two were found guilty of violating the no- 
strike pledge, and that two were found guilt}" of 
permitting and encouraging an unauthorized strike 
in wartime? 

Mr. Edises: That is my recollection, but the de- 
cision, of course, would show that itself. 

Mr. Royster: Yes. And this exhibit is offered, 
if I understand it correctly, solely for the purpose 
of showing that such a finding was made? 

Mr. Edises: Yes, a finding was made. 

Mr. Royster: I have no objection to 7. 

Trial Examiner Ruckel : Does anybody else have 
an objection to 7? 

Trial Examiner Ruckel : Does anybody else have 
an objection to Intervener's 7? 



N. L. R. B. et al 771 

(Testimony of Charles Wood.) 
Mr. Hecht: I have no objection. 
Trial Examiner Ruckel : It will be received. 

(The document heretofore marked [681] as 
Intervener's Exhibit No. 7 for identification 
was received in evidence.) 

Mr. Edises : I am sorry. Have both the exhibits 
been received? 

Trial Examiner Ruckel: 7 has. 

Mr. Royster: I have no objection to Intervener's 
6 either. I assume that it is also offered only for 
the purpose of showing that the individuals named 
here were found guilty of certain charges? 

Mr. Edises: That is right. 

Trial Examiner Ruckel: Any other objection? 

Mr. Hedit: I have none. 

Mr. Rowell: No objection. 

Trial Examiner Ruckel: It will be received. 

(The document heretofore marked Inter- 
vener's Exhibit No. 6 for identification was 
received in evidence.) 

Trial Examiner Ruckel: Any further questions 
of this witness? 

Mr. Edises: No further questions. 

Recross Examination 

By Mr. Royster: 

Q. When was it, Mr. Wood, that you learned 
that the four committeemen, as we have referred to 



772 Colgate-Palmolive-Peet Co. V6. 

(Testimony of Charles Wood.) 

them here, were charged ^vith fomenting and en- 
couraging a wartime strike? 

A. Well, I never had, if I recall, precise — I don't 
have [682] precise knowledge of the time I heard 
it. Lots of this stuff came to me as the thing pro- 
gressed, after the 1st of August. 

Q. Well, it would be true, would it not, to say- 
that you heard of no charges until after these men 
had been discharged? A. Now, let me think. 

Mr. Edises: I would like to here, for a mo- 
ment, 

Mr. Royster: I would like to have the witness 
answer it. 

Mr. Edises: Well, I would like to object then 
on the ground that the question is not made clear, 
w^hether he is referring to the filing of a formal 
charge under the union's trial machinery, or whether 
he is sim^Dly referring to a general accusation that 
these guys v/ere responsible for pulling that phony 
strike. 

Mr. Royster: Well, I am talking to the witness 
in the same terms that you talked to him. You 
read certain allegations that had been made con- 
cerning these committeemen to the witness, and 
you asked him if he had ever had knowledge that 
such charges were a matter of controversy within 
the union, and he answered "Yes". Now, I am 
trying to show, or trying to discover when he 
learned of this controversy or discussion. 

Trial Examiner Ruckel: Well, it is very appar- 



iV. L. B. B. et al 773 

(Testimony of Charles Wood.) 

ent that this trial did not take place until long after 

tliey were suspended. [683] 

Mr. Royster: Yes, Mr. Examiner, but the trial 
relates matters which happened long before the 
strike took place, and the witness said "Yes", he 
knew that these matters were a subject of con- 
troversy. 

The Witness: I said I heard it. 

Q. (By Mr. Eoyster) : Yes, you heard it. 

A. I didn't say I knew it. 

Q. But you heard there was certain controversy 
within the union? A. Yes. 

Q. And that it concerned the matters about 
W'hich Mr. Edises read to you? 

A. Yes, but I was not a member of the union. I 
didn't know 

Mr. Hecht : Mr. Wood, I think that Mr. Royster 
has in mind whether you heard that these men were 
accused of pulling the strike after it occurred, or 
after the strike occurred. 

Mr. Eowell: When? 

Mr. Edises: No, I don't think 

Mr. Rowell: That doesn't make sense. 

Trial Examiner Ruckel : I don 't think that is 
the question. 

Mr. Royster: Well, I will ask this question: 

Q. (By Mr. Royster) : Did the fact that you 
at some time heard that these four committeemen 
had been charged with [684] responsibility for 
fomenting or leading a wartime strike have any- 



774 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

thing to do with your accession to the union's de- 
mand that they be suspended? 

Mr. Hecht: I object. 

A. Name the four men. 

Mr. Edises: Just a minute. I object. 

Mr. Hecht: I object to tse question. It has 
nothing to do with this case, and whether he ac- 
ceded to it because they had been charged with a 
strike, or v/hether he acceded to it because a letter 
was presented to him, there is no point in asking 
him that question. 

Mr. Edises: I would like to add on the ground 
of complicity with what counsel says the evidence 
shows very clearly and it has not been contradicted, 
that the basis for the company's acquiescence in 
the union's demand was their belief, good faith 
belief, that the contract required them to do so and, 
that, as a matter of fact, they acted contrary to 
their own desires in doing so. 

Mr. Kowell: Well, now, counsel has so well 
educated the witness I suggest you withdraw the 
question, Mr. Royster. 

Mr. Royster: Well, of course, the record and 
the evidence is not as clear as Mr. Edises would 
have us believe, and the fact is that there has been 
some effort here by way of testimony to establish 
that the witness and other responsible officers of the 
company -could well believe that the ILWU's re- 
quest that these men be suspended was based upon 
certain [685] actions that the individuals had taken, 
which was distasteful to the ILWU, and had no 



A^ L. R. B. et at 775 

(Testimony of Charles Wood.) 

bearing upon this A P of L controversy in the plant. 

Mr. Hecht: May I make a statement at this 
point, Mr. Royster'? I believe the question of law 
involved here is the knowledge of the company with 
reference to the reasons why these men were put 
in bad standing. Your question was the reason 
why the company acceded, and I think the record 
is clear as to why the company ac<3eded, because 
it was told that the men were not in good standing. 
So, perhaps if you would reframe your question I 
would have no objection. 

Mr. Royster: Well, of course, that is your con- 
clusion, Mr. Hecht. 

Mr. Hecht: Vfell, that is the basis of my objec- 
tion. 

Mr. Royster: I will withdraw the question and 
I have no further questions of this witness. 

Q. (By Mr. Rowell) : Could I ask who you 
heard these various matters from, Mr. Wood? 

A. Well, I would have to ask you to be more 
specific'? What various matters? 

Q. For exami3le, from whom did you hear thn.t 
these stewards had been spreading false and mis- 
leading information among the membership con- 
cerning the i^olicy and program of the union, the 
activities and position of union officers, the status 
of the union treasury, and the status [686] of the 
contract between the union and Colgate-Palmolive- 
Peet Company? 

Mr. Edises: Objected to on the ground that he 



776 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

did not testify having such knowledge. That ques- 
tion was not asked of him. 

Q. (By Mr. Eowell) : From whom did you 
hear that Sherman — I withdraw that. 

From whom did you hear that two of the shop 
stewards had been charged with making statements 
against Paul Heide and other officials of the union, 
such as that they were looting the union's treasury 
and so forth? 

A. Can you name the stewards? 

Q. Well, it says here, ''Sherman, Thompson 
and Lonnberg," Init I think you testified it was 
Marshall and 

Mr. Hecht: No. He didn't testify it was Mar- 
shall. 

A. I didn't testify. 

Q. (By Mr. Rowell) : Did you testify you had 
heard some charges made against stewards of that 
kind? 

Trial Examiner Ruckel: He particularly speci- 
fied he didn't hear it as to these. 

Q. (By Mr. Rowell) : Did you testify that you 
had heard these shop stewards had been charged 
with refusing to call a meeting of the employees? 

A. Yes, I had heard they refused to call a 
meeting. 

Q. Who did you hear that from? [687] 

A. I can't recall. It was common talk around 
the plant, there was quite a bit of talk about it, that 
they hadn't had a house meeting for a long time. 

Q. Was there talk pro and con about that? 



N. L. R. B. et al 777 

(Testimony of Charles Wood.) 

Mr. Edises: Well, now, I will object to that. It 
is going- outside the scope of proper cross examina- 
tion. What possible difference could it make? 

Trial Examiner Ruckel : Objection sustained. 

Mr. Eowell: Well, now, Mr. Examiner, if evi- 
dence is brought in here that there was dissatisfac- 
tion on the part of the union with the conduct of 
these employees I am certainly entitled to bring 
out that the company had knowledge that the em- 
ployees were dissatisfied with the union. 

Trial Examiner Ruckel : Yes, but the employees 
are not charged with discharging the union. The 
union is, or the respondent is accused of discharging 
the employees at the invitation of the union. 

Mr. Rowell: Certainly. 

Trial Examiner Ruckel: So the question is, 
what did the respondent hear that might he the 
union's reasons for asking the discharge of these 
men. It is not relevant to what might have been 
on the other side. 

Mr. Rowell: It certainly is. If the Respondent 
knew that the employees were dissatisfied with this 
vmion and were trying to get out of it, then they 
are certainly put on [688] notice as to — at least, it 
certainly is evidence that they knew why the union 
was taking that action. 

Trial Examiner Ruckel: Well, Respondent has 
already testified that it is perfectly clear that their 
employees were trying to get out of the union. That 
is not controverted. 



778 Colgate-Palmolive-Peet Co. vs. 

(Testimony of Charles Wood.) 

Mr. Rowell: And that the company knew about 
it. All right, I withdraw it. 

M.T. Edises : Those were your words, Mr. Rowell. 

Mr. Rowell : The Examiner wouldn 't let me add 
to the proof on the score. 

Trial Examiner Euckel: Any further questions 
of this witness? 

Mr. Royster: Nothing further from the Board. 

Mr. Hecht: Nothing further. 

Mr. Edises: No further questions. 

Mr. Hecht: And the respondent rests, Mr. 
Examiner. 

Trial Examiner Ruckel: That is all. 

(Witness excused.) 

Does the Board or the intervening union have 
any witnesses'? 

Mr. Edises: Could we go off the record for a 
minute ? 

Trial Examiner Ruckel: Off the record. 
(Remarks outside the record.) 

Trial Examiner Ruckel: On the record. [689] 
Mr. Edises : Will you please mark this as Inter- 
vener 's Exhibit 8 and Intervener's 9? 

(Thereupon the documents above referred to 
were marked Intervener's Exhibits 8 and 9 
for identification.) 

Mr. Edises: Will it be stipulated that the two 
transcripts of testimony which I hold in my hand, 
and which aie marked for identification as Inter- 



N. L. R. B. et al T?J 

vener's Exhibit 8 and Intervener's Exhibit 9, being 
the transcripts of the testimony taken at the trials 
of various of the complainants on which the deci- 
sions heretofore introduced in evidence as Inter- 
vener's 6 and 7 were based, may be received in 
evidence for the sole purpose of indicating the pro- 
ceedings on which those decisions were based and 
not as evidence of the truth of any of the matters 
contained in those transcripts'? 

Mr. Royster: So stipulated. 

Mr. Rov/ell : So stipulated. 

Mr. Heclit: No objection. 

Trial Examiner Ruckel: They may be received. 

(The documents heretofore marked Inter- 
vener's Exhibits Nos. 8 and 9 for identification 
were received in evidence.) 

Mr. Edises : Mr. Examiner, could I ask that we 
have a few minutes' recess for the purpose of check- 
ing my notes to determine whether I have anything 
further *? 

Trial Examiner Ruckel : We will recess for five 
minutes. [690] 

(A short recess was taken.) 

Trial Examiner Ruckel : On the record. 

Has the Intervener finished? 

Mr. Edises: Yes, the Intervener will not pro- 
duce any further evidence. 

I would like to ask the Examiner whether, in liis 
opinion, the filing of a written motion to intervene 
is required, because on account of the pressure of 



780 Colgate-Palmolive-Peet Co. vs. 

other business I ^Yas unable today to go down to 
my office and pick up the written motion which I 
had dictated over the telephone. If, in the opinion 
of the Trial Examiner, it is not mandatory, I would 
prefer to rest on our oral intervention. 

Trial Examiner Ruckel: It is not mandatory. 
I will waive the requirement of a written petition 
and grant your oral petition as of yesterday, or as 
of the first day of the hearing, to intervene. 

Mr. Edises: Thank you. 

Trial Examiner Ruckel: Are there any motions 
by any of the parties'? 

Mr. Royster: I move, Mr. Examiner, to con- 
form the pleadings to the proof in matters such as 
the dates, spelling of names, and other matters not 
of substance. 

Trial Examiner Ruckel: If there is no objec- 
tion, the motion will be allowed. 

Mr. Hecht: No objection whatsoever, Mr. Ex- 
aminer. [691] 

Mr. Royster: I have no further motions. 

Mr. Hecht : At this time, Mr. Examiner, I would 
like to move to dismiss the charge contained in 
Paragraph V of the complaint. Subdivision 3, to- 
wdt: "Refusing miion representatives access to its 
Berkeley jolant, while permitting ILWU repre- 
sentatives freely to enter the plant ." 

Trial Examiner Ruckel: I don't think the re- 
porter can hear you. 

Could it be comprised by saying that you renew 
all the motions made this morning which were not 
granted by the Trial Examiner'? 



N. L. R. B. et at 781 

Mr. Hecht: Yes, Mr. Examiner. 

Trial Examiner Ruckel: Ruling on those mo- 
tions is reserved. 

Mr. Edises: For the ILWU I would likewise 
renew the motion to dismiss on the ground that the 
actions taken in regard to the complainants was 
pursuant to a valid closed shop agreement, and, 
further, that in any event the complainants should 
be denied any relief under the Act because of their 
participation in an illegal wartime strike. 

Trial Examiner Ruckel: Ruling is also reserved 
on that motion. 

Mr. Hecht : Mr. Examiner, at this time on behalf 
of the respondent I would like to have all charges 
brought on behalf [692] of Edward Navarro dis- 
missed. 

The Examiner will recall that Mr. Navarro was 
a member of the CIO No. 1304, Machinists, and 
actually never maintained, or never had an ILWU 
status at the plant. 

Trial Examiner Ruckel : Wasn 't there some 
further — what do you claim for Navarro ? 

Mr. Royster. AVell, Mr. Examiner, I claim that it 
was not the practice at the Colgate-Palmolive-Peet 
Plant to enforce the closed shop contract as far as 
members of the Eastbay Union of Machinists, Local 
1304, is concerned, that others at the plant had 
membership only in the Machinists L^nion and were 
not disturbed in their employment, and it was not 
until Mr. Navarro wore an A F of L button and 
otherwise in.dicated his friendliness toward the 
A F of L, that he was discharged. 



782 Colgate-PalmoUve-Peet Co. vs. 

Mr. Edises: Mr. Examiner, may I be heard a 
moment on that*? I have no recollection that the 
testimony shows any of the matters referred to by 
]\[r. R oyster. I am quite certain that those matters 
were not gone into at all in the record. The fact 
is I am informed by Mr. Gleichman that the onl}^ 
exceptions made in the case of 1304 people were 
those who worked as machinists. And I will fur- 
ther remind the Examiner of the testimony that 
Mr. Luchsing-er, one of the complainants liere, asked 
this man to Join the ILWU. 

Trial Examiner Ruckel: That is my recollec- 
tion, but I [693] am not going to grant the motion 
now. The record will bear reading. Ruling is 
reserved. 

Mr. Hecht: Mr. Examiner, at this point I also 
would like to move to dismiss all charges brought 
on behalf of the following named complainants: 
Calixto Rigo, Robert Ash worth, Thomas Azevedo, 
Manuel Munoz, Nick Tate, Glenn Hixson, Vincent 
Barboni, Martin Heppler, Alden Lee, Felix Den- 
kowski, Manuel Souza, Albert Zulaica, Ann Cerrato, 
Ina Mae Paige, Catano Periera, Rose Ros and John 
Puruca. 

The basis of the motion, Mr. Examiner, is the 
basis of my motion directed to Albert Zulaica, for 
the reason that these persons w-ho are now com- 
plainants here pleaded guilty to charges brought 
against them by the ILWU, and it is hardly fitting 
that persons who have admitted that they w^ere put 
in bad standing for reasons other than membership 
of the A F of L should be in this Board, before this 



N. L. R. B. et al 783 

Board claiming relief on the basis that they were 
dis<?hargecl for A F of L activity. 

Trial Examiner Ruckel : Ruling on the motion 
is reserved. 

Mr. Royster: I v.-onld just like to remark that, 
of course, the individuals named did not in any 
Vv'ay admit that the reason for their suspension from 
membership was their participation in this strike. 

Mr. Hecht : I think that the record and the find- 
ings would bear the contrary out, Mr. Royster, and 
I am not saving [69tl] they were guilty of the charge, 
l)ut I am saying that they did admit the charge. 

Trial Examiner Ruckel: Any further motions? 

Mr. Hecht: I will move, without stating the 
grounds (I think I have already expressed them to 
the Examiner) to dismiss the whole proceeding on 
the basis that this is an attack on the validity of a 
contract that has not otherwise been in any way 
impeached as fraudulent, invalid, or an imposition 
on the desires of the complainants before this 
Examiner. 

Trial Examiner Ruckel : Ruling is reserved. 

Mr. Hecht: No further motions. 



784 Colgate-PalmoUve-Peet Co. vs. 

BOARD'S EXHIBIT N. 3 

[Warehouse Union Local 6 Letterhead] 

July 30, 1945. 
Colgate, Palmolive, Peet Company, 
6th & Carlton Streets, 
Berkeley, California. 

Att: Mr, C. A. Altman 
Dear Mr. Altman: — 

This is to notify you that charges have l)een pre- 
ferred by this Union against the following em- 
ployees of your Company, and that they have been 
suspended from membership of this organization 
pending a trial as provided for in the Constitution 
of our local Union: 

Clyde W. Haynes, R.F.D. #2, Box 884, Wal- 
nut Creek, Calif. 

Dave Luchsinger, 434 - 65th Street, Oakland. 

Frank Marshall, Rt. 1, Box 241, Walnut 
Creek, Calif. 

Sanford Moreau, 1004 Jones Street, Berke- 
ley, Calif. 

Harry A. Smith, Box 243, Rt. 6, Walnut 
Creek, Calif. 

We therefore, respectfully request that the above- 
named employees of your Company be immediately 
removed from the job until such time as the charges 
against them have been determined by this organi- 
zation. 



A^ L. R. B. et at 785 

Trusting that we may have your cooperation in 
this matter, we remain 

Very truly yours, 

/s/ PAUL HEIDE, 
PH :ES Vice-President 

owu-cio 



BOARD'S EXHIBIT No. 4 

This phamphlet was distributed on Co. property 
before discharge of first 5 employees (Steward) 
distributed July 30, 1945. 

Attention ! 
All Warehouse Union Members: 

An illegal meeting has been called by certain 
employees of Peet's, now under suspension as mem- 
bers of this union for violation of the membershij) 
oath, and other illegal acts. 

Warning ! 

Any member of Local 6 who attends such illegal 
meeting or participates in violations of our con- 
stitution, does so at the risk of losing membership 
and employment. 

GENERAL EXECUTIVE BOARD 

Warehouse Union Local #6, ILWU 
owu/cio 



786 Colgate-Palm oUve-Peet Co. vs. 

BOARD'S EXHIBIT No. 5 

[Standard Form No. 14 Telegram] 

July 30, 1945. 
Int. AVarehonse Union 6 

You are hereby notified that more than 200 em- 
ployees of the Colgate-Palmolive-Peet Co., all being 
former members of your union and being more than 
50% of such employees by action taken for such 
purpose have and do hereby withdraw from your 
union, sever connections and refuse to be further 
bound by any of the laws rules or regulations of 
the constitution of I.L.W.U. 

EMPLOYEES WELFARE ASSOCIATION 
By Negotiating Committee 
E. H. Thompson 
W. Sherman 



BOARD'S EXHIBIT No. 6 

[Western Union Telegraph Form) 

WUAH 17 61 Berkeley Calif July 30 1048A 

Bert Railey, Mgr 

Colgate Palmolive Peet Co. 

800 Carleton St WUX Berkeley Calif. 

You are hereby notified of action taken by more 
than 200 employees of Colgate Palmolive Peet Co 
all being former members of RLWU 1-6 and being 
more than 50 percent of total employees have with- 



N. L. B. B. et al 787 

drawn and severed relations with ILWT-6 as col- 
lective bargaining agent. 

EMPLOYEES WELFARE ASSOCIATION 

By Negotiating Committee 921A 

E H Thompson William Sherman 
H Lunnberg L Olson 



BOARD'S EXHIBIT No. 7 

Colgate-Palmolive-Peet Co. 
Agreement 

This Agreement, made and entered into this 9th 
day of July 1941, by and between Colgate-Palm- 
olive-Peet Company, Berkeley, Plant hereinafter 
referred to as the Employer, and Warehouse Union 
Local 1-6, I.L.W.U., hereinafter referred to as the 
Union. 

A¥itnesseth 

•Sf- * * * * . * * 

Section 2. Recognition. The Union is hereby 
recognized as the sole collective bargaining repre- 
sentative for all employees covered by this agree- 
ment. 

Section 3. The Employer agrees that when new 
employees are to be hired to do any work covered 
by Section One (1), they shall be hired thru the 
offices of the Union, provided that the Union shall 
be able to furnish competent workers for work re- 
quired. In the event the union is imable to furnish 
competent workers, the Employer may hire from 



788 C olgate-Palmolive-Peet Co. vs. 

outside sources, provided that employees so hired 
shall make application for membership in the Union 
within fifteen (15) days of their employment. The 
employees covered by this agreement shall be mem- 
bers in good standing of the Union and the Em- 
ployer shall employ no workers other than members 
of the Union subject to conditions herein above 
prescribed. In the hiring of new help (for the 
warehouses), they shall be hired through the offices 

of the Warehouse Union, Local 1-6, I.L.W.U. 

******* 

Section 18. Future Changes. The above consti- 
tutes an agreement between the Company and its 
employees, represented by the International Long- 
shoremen's and Warehousemen's Union, Local 1-6, 
and shall remain in effect unless and until changes 
become necessary because of conditions beyond the 
control of the Comx)any or are requested by the 
employees through their representatives. 

Thirty (30) days notice will be required before 
the adoption of any change suggested by either the 
employees or the Company and no change of any 
sort will be made without collective agreeraent to it 
having been arrived at between the Company and 
the representatives of the employees. If and when 
such changes are found necessary they will be made 
with due regard for the mutual rights, privileges 
and well being of the employees and the Company. 

Memorandum of Agreement 

It is hereby agreed that certain contract dated 
July 9, 1941, by and between Warehouse Union, 



iV. L. R. B. et al 789 

Local 6, I.L.W.U., and Colgate, Palmolive Peet 
Company, shall remain in full force and effect, pend- 
ing the disposition of those provisions which apply 
to the following: 

Shift differentials 

Wage rates for women workers 

Sick leave 

and upon which agreement has been reached by the 
parties hereto, subject to approval of the Tenth 
Regional War Labor Board. 



BOARD'S EXHIBIT No. 8 

Attention All Members I.L.W.U. #6 Employed at 

Colgate, Palmolive, Peet Company! 

Look Before You Leap! 

Because of a constant campaign of misinforma- 
tion and falsehoods carried on by Sherman-Mar- 
shall-Lundeburg & Co., many otherwise reliable 
members of our union are being misled down a blind 
alley, and into action that can only result in losses 
and hardship for the membership involved. The 
unscrupulous people who are attempting to promote 
strike action at this plant are traitors to our union 
membership, our flag and our country! AU mem- 
bers who join with them are jeopardizing their own 
reputation, their union standing, their seniority and 
their jobs! Any strike at this plant will bring an 
immediate directive from the Regional War Labor 



790 Colgate-Palmolive-Peet Co. vs. 

Board to return to work — and will resolve no issues 
— fancied or otherwise! 

So that all members may understand the true sit- 
uation, the following is a copy of agreement extend- 
ing the provisions of the union contract, including 
the requirement that only members of Warehouse 
Union, Local #6, I.L.W.U., in good standing may 
be employed by the company. It v»dll be enforced 
by the entire membership of our union, if it becomes 
necessary. 

Memorandum of Agreement 
(Copy) 

It is hereby agreed that certain contract dated 
July 9, 1941, by and between Warehouse Union, 
Local 6, I.L.W.U., and Colgate, Palmolive, Peet 
Company, shall remain in full force and effect, 
pending the disposition of those provisions which 
apply to the following: 

vShift differentials 

AVage rates for women workers 

Sick Leave 
and upon which agreement has been reached by the 
parties hereto, subject to approval of the 10th Re- 
gional War Labor Board. 

In Witness Whereof, w^e set our hands and seals 
this 24th day of July, 1945. 

COLGATE, PALMOLIVE, PEET COMPANY 

By /s/ C. A. ALTMAN 
WAREHOUSE UNION, LOCAL 6, ILWU 

By /s/ LOUIS GONICK 
owu-cio 



N. L. R. B. et at 791 

BOARD'S EXHIBIT No. 9 

(Copy) 

Warehouse Union, Local 6, C.I.O. 

158 Grand Avenue Oakland 12, Calif. Higate 5045 

July 31, 1945 
Mr. Lincoln Olsen 
623 Kearney St., 
El Cerrito, Calif. 

In accordance with Article 15, Sections 1, 2 & 3, 
and in accordance with Section 7 of the same Arti- 
cle, of the Constitution of Warehouse Union, Local 
6, International Longshoremen's & Warehouse- 
men's Union, you are hereby notified that charges 
are preferred against you for the following viola- 
tions of the constitution and By-Laws of this organi- 
zation : 

1. Violation of Declaration of Principles. 

2. Violation of Oath of Membership. 

3. Violation of Article 9, Section 1. 

You are hereby notified that in accordance with 
Section 14, of Article 15, the Executive Committee 
finds that there is good cause to believe the charges 
to be true, and you are, therefore, suspended as a 
member of this Local as of this date, losing all 
rights and privileges, pending a trial as provided 
for in Article 15 of the Constitution of Warehouse 
Union, Local 6, ILWU. 

/s/ PAUL HEIDE, 
PH:ES Vice-President for the Gen- 

o\^ai-cio eral Executive Board 

Registered — Return Receipt Requested 

Received Aug. 31, 1945. 



792 C olgate-Palmolive-Peet Co. vs. 

BOARD'S EXHIBIT No. 10 

[Warehouse Union, Local 6 Letterhead] 

September 1, 1945. 
Colga.te-Palmolive-Peet Company, 
6th & Carlton Streets, 
Berkeley, California. 

Att: Mr. C. A. Altman 
Dear Mr. Altman: — 

This is to notify you that the employees named 
below have been suspended from membership in this 
Union and are no longer members in good standing. 

Pending the determination of Charges which have 
been filed against these persons in accordance with 
our Constitution and By-Laws, you are requested, 
in accordance with our Agreement, to remove these 
persons from your employ until such time as you 
receive word from us in regard to their status as 
members in this Union. 

Rose Ross Martin Heppler 

Esther Young Bill Howard 

Ina M. Paige Glex Hixon 

Ophelia Reyes Alden Lee 

Kay Norris Al Barboni 

Ann Cerrato Felix Denkowski 

Henry Giannarelli A. L. Richards 

Manuel Souza Terry Anderson 

Albert Zulaica K. Periera 
Mike Ramirez 



N. L. R. B. et at 793 

Your immediate attention to this request will be 
ajjpreciated. 

Yours very truly, 

/s/ PAUL HEIDE, 
PH :ES Vice-President, 

owu-cio 

Received Sept. 11, 1945. 



BOARD'S EXHIBIT No. 11 

[Warehouse Union, Local 6 Letterhead] 

July 30, 1945. 
Mr. William Sherman, 
1515 Kains Avenue, 
Berkeley, California. 

In accordance with Article 15, Sections 1, 2 & 3, 
and in accordance with Section 7 of the same Arti- 
cle, of the Constitution of Warehouse Union, Local 
6, International Longshoremen's & Warehousemen's 
Union, you are hereby notified that charges are pre- 
ferred against you for the following violations of 
the constitution and By-Laws of this organization: 

1. Violation of Declaration of Principles. 

2. Violation of Oath of membership. 

3. Violation of Article 9, Section 1. 

You are hereby notified that in accordance with 
Section 14, of Article 15, the Executive Committee 
finds that there is good cause to believe the charges 
to be true, and you are, therefore, suspended as a 



794 Colgate-PalmoUve-Peet Co. vs. 

member of this Local as of this date, losing all rights 
and privileges, pending a trial as provided for in 
Article 15 of the Constitution of Warehouse Union, 
Local 6, I.L.W.U. 

/s/ PAUL HEIDE, 

Vice-President for the Gen- 
PH:ES eral Executive Board 

owu-cio 

Registered — Return Receipt Requested 



BOARD'S EXHIBIT No. 12 

August 22, 1945. 
Dear Member: 

Further investigation of the disruptive activities 
of former Shop Stewards and others, brings to light 
the following facts: 

1. Some people enjoyed benefits of the closed shop 
Agreement at Peets, who were not members of 
your Union. Although the majority were pay- 
ing their initiation, dues, and going to the meet- 
ings, there were a chosen few who were riding 
free. Why "? 

2. Many "favorites" were being "excused" from 
meetings, saving a $1.00 fine, and undermining 
interest in Union affairs. Why*? 

3. Management was not reporting all new people 
hired, so that between the Stewards and the 
Company, your Union was steadily undermined 



N. L. R. B. et al 795 

for six months. Those wlio did the dirty work 
were the ones pointing fingers at the elected 
Union officials and committing slander, while 
at the same time making big promises about 
the A.F.L. Why'? 

4. We found that these "misleaders" advised: 

a) That the CIO Warehouse Union, Local 6, 
had no Agreement with Peets. 

b) Not to join the CIO Warehouse Union. 

c) Not to pay dues. 

d) Not to show your Union book to any CIO 
Steward or official. 

e) That you didn't have to ])other with rules 
and by-laws passed by majority of the 18,000 
members of Local 6. 

f) That you didn't have to listen or follow the 
instructions of Bopp, Squires, Leacock and 
DaCruz, the Stewards who were elected 
unanimously at the last Peet's house meet- 
ing held Friday, August 10th, 8:00 P.M. 

You Have Been Fed Poison and Now You Are 
Being Wrongly Advised. Why? 

5. Warehouse Union, Local 6, has an agreement 
with Peet's. A large company such as Peet's 
would not do business with a Union if it didn't 
have a written contract. Chemical Woikers' 
Union #233 would be hard pressed to prove 
there wasn't a contract. They know a "good 
standing clause" is why the Company had to 
lay off the nine men when Local 6 demanded it. 



796 Colgate-Palmolivc-Pect Co. vs. 

6. Only members of the Warehouse Union, Local 
6, work at Colgate Palmolive Peet Company. 
If anyone says different — let him test it! 

7. Any Peet's employee reported as trying to get 
people to bolt the CIO and join the AFL or 
wearing an AFL button, will be taken off the 
job. 

8. Local 6 is defending your best interest when 
it acts against disruptive members, just as in 
the Armed Forces we are always better off 
when spies and fifth columnists are kicked out, 
rather than appeased. 

9. The coming trials will determine the honesty 
and justness of the charges. 

10. As a result of the investigation last week, we 
have found it necessary to consider the removal 
of several more of the ringleaders who have vio- 
lated all of our rules. 

11. In a few days there will be a dues book check-up 
at the plant. Anyone who does not have his 
book will have to go home and get it. 



If 



a) you are more than sixty days delinquent 
in dues, you may be suspended from the 
job. 

b) You are six months delinquent, you will 
automatically be dropped from the rolls as 
a member in bad standing. 



iV. L. R. B. et al 197 

Who Got You Into This Mess? 

Devotion to a friend, the noblest of human in- 
stincts, has been misused, and you have been mis- 
led. Regardless of whether there is an NLRB elec- 
tion, you will find that your confidence has been 
misplaced in a small group of selfish individuals at 
Peet's who would rather be "big fishes" in a small 
pond than just '"average size" in a big pond. Am- 
bitious, self-seeking men, are often willing to do 
anything to get one stejD higher . . . even tho they 
may injure the welfare and pocket books of their 
friends and fellow workers. 

Some "innocent" bystanders and "standby- 
ers" will lose their AFL initiation fee and dues, 
while this provoked argument awaits settle- 
ment. ^Taen you consider the big fight ahead 
to improve our present wages, isn't it criminal 
that you should be used by unscrupulous peo- 
ple at the cost of your retroactive pay, pen- 
sions and seniority? 

The Loss in the pocket will be yours, not the 
weak new Chemical Workers' Union. 

Certain restrictions have been lifted from the 
War Labor Board procedure. Your Union de- 
mands the Company immediately institute: 

a) 5c per hour additional for women. 

b) 5c per hour additional for swing workers. 

c) 10c per hour additional for graveyard 
workers. 

d) 5 days' sick leave. 



798 C olgate-Palmolive-Peet Co. vs. 

The Next Step — Sufficient wages i^er hour so that 
if the 40-hoiir week returns, you will not suffer 
take-home pay reduction. 

Last Monday's special membership meeting at- 
tended by 2,000 members, and yesterday morning's 
membership meeting for graveyard workers, at- 
tended by 300 people, passed the following resolu- 
tions unanimously: 

1) That CIO Warehouse Union, Local 6, partici- 
pate, with the rest of the CIO Unions in this 
area, in a Wage Conference to establish the fol- 
lowing benefits for all of our members. 

a) $1.15 per hour base pay for all warehouse 
workers. 

b) Elimination of sex differential, once and 
for all, so that women get the same pay as 
men. 

c) Jobs for all, regardless of race, color, sex 
or creed, and especially for returning vet- 
erans, to get all the benefits that they would 
have enjoyed had they not fought. 

We Suggest — If you value your future at Col- 
gate Palmolive Peet; if you enjoy your present job; 
if you vv^ould like to retain your seniority and pen- 
sion, and receive the retroactive pay due you, we 
advise you to think carefully about anything told 
you — then tell the AFL disrupters that you are not 
interested in th«ir form of phoney unionism. 

WAREHOUSE UNION, 
Local 6, I.L.W.U. 
owu :cio 

Received Aug. 31, 1945. 



N. L. R. B. et al 799 

BOARD'S EXHIBIT No. 14 

United States of America 
Before the National Labor Relations Board 

Case No. 20-R-1486 

In tlie Matter of 

COLGATE-PALMOLIVE-PEET COMPANY 

and 

INTERNATIONAL CHEMICAL WORKERS 
UNION, AFL 

Mr. Bartley C. Crnm, of San Francisco, Calif., 
for the Company. 

Mr. Harvey E. Howard, of Oakland, Calif., and 
Mr. O. L. Farr, of Selma, Calif., for the AFL. 

Messrs. Paul Heide and Charles Duarte, and 
Gladstein, Grossman, Sawyer & Edises, by Mr. 
Bertram Edises, of Oakland, Calif., for the CIO. 

Mr. Benj. E. Cook, of counsel to the Board. 

DECISION AND DIRECTION OF ELECTION 

Statement of the Case 

Upon a petition duly filed by International Chem- 
ical Workers LTnion, AFL, herein called the AFL, 
alleging that a question affecting commerce had 
arisen concerning the representation of employees 
of Colgate-Palmolive-Peet Company, Berkeley, Cali- 
fornia, herein called the Company, the National 
Labor Relations Board provided for an appropri- 



800 C olgate-Palmolive-Peet Co. vs. 

ate hearing upon due notice before Eobert E. Till- 
man, Trial Examiner. Said hearing was held at San 
Francisco, California, on August 22, 1945. At the 
commencement of the hearing, the Trial Examiner 
granted a motion to intervene by International 
Longshoremen's and Warehousemen's Local 6, CIO, 
herein called the CIO. All parties were afforded 
full opportunity to be heard, to examine and cross- 
examine witnesses, and to introduce evidence bear- 
ing on the issues. 

At the hearing, the Trial Examiner reserved rul- 
ing for the Board on motions made by the Company 
and the CIO to postpone any election to be directed 
herein until such time as the Board determines the 
validity of the charges filed by the AFL in case 
No. 20-C-1372. The motions are hereby denied. ^ 
The Trial Examiner's rulings made at the hearing 
are free from prejudicial error and are hereby af- 
firmed. All parties w^ere afforded an opportunity 
to file briefs with the Board. 

Upon the entire record in the case, the Board 
makes the following: 

Findings of Fact 

I. The Business of the Company 

Colgate-Palmolive-Peet Company is a Delaware 
corporation, having its central office in Jersey City, 
New Jersey. It operates plants in Jersey City, New 



iThe AFL on August 13, 1945, waived its right 
to protest any election directed herein on the 
groimds set forth in the charges filed by it in Case 
No. 20-C-1372. 



N. L. R. B. et al 801 

Jersey, Brooklyn, New Yorl:, (a subsidiary), Jef- 
f ersonville, Indiana ; Kansas City, Kansas, and Ber- 
keley, California, where it is engaged in the manu- 
facture and sale of soap and glycerine. During 1944, 
the gross sales of the Company at its Berkeley plant, 
the only plant involved in this proceeding, were in 
excess of $1,000,000, and the total sales to customers 
located outside the State of California amounted to 
more than 25 per cent of the gross sales. During 
the same period, raw materials having a value in 
excess of $1,000,000, were used at the Berkeley 
plant, of which more than 25 per cent was obtained 
from points outside the State of California. 

The Company admits and we tind that it is en- 
gaged in commerce within the meaning of the Na- 
tional Labor Relations Act. 

II. The Organizations Involved 
International Chemical Workers Union, affiliated 
with the American Federation of Labor, is a labor 
organization admitting to membership employees 
of the Company. 

International Longshoremen's and Warehouse- 
men's Local 6, affiliated with the Congress of In- 
dustrial Organizations, is a labor organization ad- 
mitting to membership employees of the Company. 

III. The Question Concerning Representation 
The Company has refused to recognize the AFL 
as the exclusive bargaining representative of its 
employees. 

It is the contention of the Company and the CIO 
that a contract executed by them July 9, 1941, to- 
gether with successive extensions, constitutes a bar 



802 Colgate-Pahnolive-Peet Co. vs. 

to this proceeding. Neither the original nor supple- 
mental contracts contain a definite termination date.^ 
In view of its indefinite duration and the fact that 
it has been in force for at least 1 year, we find that 
the contract and extensions thereof, do not consti- 
tute a bar to a determination of representatives. 

A statement of a Board agent, introduced into 
evidence at the hearing, indicates that the AFL rep- 
resents a substantial number of employees in the 
unit hereinafter found appropriate.^ 

We find that a question affecting commerce has 
arisen concerning the representation of employees 
of the Company, within the meaning of Section 
9 (c) and Section 2 (6) and (7) of the Act. 



2The original contract reads, in fact, as follows: 
"Section 18. Future Changes. The above 
constitutes an agreement between the Company 
and its employees, represented by the Interna- 
tional Longshoreman's and Warehouseman's 
Union, Local 1-6, and shall remain in effect un- 
less and until changes become necessary because 
of conditions beyond the control of the Com- 
pany or are requested by the employees through 
their representative. ' ' 

Although an extension agreement was executed on 
July 24, 1945, the indefinite duration clause of the 
original contract remained unchanged. 

^The Field Examiner reported that the AFL sub- 
mitted 212 authorization cards ; that 7 were undated 
and 205 dated August, 1945, and that there were 330 
employees in the requested unit. The CIO relied 
upon its contract as establishing its interest in the 
proceeding. 



N. L. R. B. et at 803 

IV. The Appropriate Unit 

We find, substantially in accord with an agree- 
ment of the parties, that all production, mainte- 
nance, warehouse, mechanical, and laboratory em- 
ployees at the Company's Berkeley, California, 
plant, including non-technical and non-professional 
laboratory employees, watchmen, assistant foremen, 
and working f oremen,^ but excluding office and cler- 
ical employees, chemists, foremen and all or any 
other supervisory employees with authority to hire, 
promote, discharge, discipline, or otherwise effect 
changes in the status of employees, or effectively 
recommend such action, constitute a unit appropri- 
ate for the purposes of collective bargaining within 
the meaning of Section 9 (b) of the Act. 

V. The Determination of Representatives 

We shall direct that the question concerning rep- 
resentation which has arisen be resolved by an elec- 
tion by secret ballot among the employees in the 
appropriate unit who were employed during the pay- 
roll period immediately preceding the date of the 
Direction of Election herein, subject to the limita- 
tions and additions set forth in the Direction. 

Direction of Election 

By virtue of and pursuant to the power vested in 
the National Labor Relations Board by Section 9 



"^The record reveals that the assistant foremen and 
working foremen, while exercising some directive 
authority, do not come within the Board 's customary 
supervisory definition. 



804 C olgate-Palmolive-Peet Co. vs. 

(c) of the National Labor Relations Act, and pur- 
suant to Article III, Section 9, of National Labor 
Relations Board Rules and Regulations — Series 3, 
as amended, it is hereby 

Directed that, as part of the investigation to as- 
certain representatives for the purposes of collec- 
tive bargaining with Colgate-Palinolive-Peet Com- 
pany, Berkeley, California, an election by secret 
ballot shall be conducted as early as possible, but 
not later than thirty (30) days from the date of this 
Direction, under the direction and supervision of 
the Regional Director for the Twentieth Region, 
acting in this matter as agent for the National La- 
bor Relations Board, and subject to Article III, Sec- 
tions 10 and 11, of said Rules and Regulations, 
among the emi:>loyees in the unit found appropriate 
in Section IV, above, who were employed during 
the payroll period immediately preceding the date 
of this Direction, including employees who did not 
work during the said pay-roll period because they 
were ill or on vacation or temporarily laid off, and 
including employees in the armed forces of the 
United States who present themselves in person at 
the polls, but excluding those emjDloyees who have 
since quit or been discharged for cause and have 
not been rehired or reinstated prior to the date of 
the election, to determine whether they desire to be 
represented by International Chemical Workers 
Union, AFL, or by International Longshoremen's 
and Warehousemen's Local 6, CIO, for the pur- 
poses of collective bargaining, or by neither. 



N. L. R. B. et al 805 

Signed at Wasliington, D. C, this 26th day of 
September, 1945. 

PAUL M. HERZOG, 

Chairman. 

GERARD D. REILLY, 

Member. 

JOHN M. HOUSTON, 

Member. 

» 

[Seal] NATIONAL LABOR 

RELATIONS BOARD 

Received Oct. 3, 1945. 



806 



Colgate-Palmolive-Peet Co. vs. 



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808 Colgate-Palmolive-Peet Co. vs. 

RESPONDENT'S EXHIBIT No. 1 

August 6, 1945 
Progress Report 

The present attempt to use the Hitler tactics of 
stirring up race hatred is apparent, due to the ac- 
tivities of those who are afraid they will lose their 
strangle-hold on the workers. All people, regard- 
less of race, color or creed, are and have been work- 
ing with us. A statement has been made that the 
International Chemical Workers Union, A. P. of L., 
discriminates against colored people. Nothing could 
be further from the truth. Chemical Workers Union 
will neither favor nor dis-favor anyone for his God- 
given birth status. There is not and never has been 
any race distinction in the issue at this plant. The 
attempt to insert it into events is proof enough in 
itself that the charges against our former officials 
are true, and some issue had to be brought into the 
picture to shield and draw attention aw^ay from the 
real issues. All of you remember our good friend, 
Bill Hunter, colored, who was the janitor at 158 
Grand Avenue. 

In Local No. 160 of the International Chemical 
Workers Union, Fresno, there are about 300 mem- 
bers, of which 275 are colored. There are two other 
Locals belonging to the International Chemical 
Workers Union which are 100% colored. They are 
accorded full rights and benefits that any other 
member is entitled to. They have full vote in the 
Council, and one of their members, Roy Fitzgerald, 
is a member of the Resolutions Committee of the 



N. L. R. B. et al 809 

District Council. Anyone who discriminates in the 
International Chemical Workers Union will be ex- 
pelled from membership. All that the employees of 
this plant are asking is to express their choice of the 
I^nion they want to belong to. Surely the Ware- 
housemen's Union is American enough to leave it 
up to the employees. 

General meeting for Peet's employees, Wednes- 
day, August 8th, 4:15 p.m. Finnish Brotherhood 
Hall, 1970 Chestnut St., Berkeley. 

Note : Dues and fees will be collected at the Fin- 
nish Brotherhood Hall, between 3:00 p.m., to 6:00 
p.m., Daily. 



RESPONDENT'S EXHIBIT No. 2 

Progress Report 

August 7, 1945 

Information From Your International Chemical 
Workers Union Committee 

What Kind of Union Do We Intend to Have? 
The answer to that question is: 

1. We shall have a Union that will be controlled 
by the workers. 

2. We shall set the time and place for Our meet- 
ings. 

3. We shall instruct our officials what we want 
them to do and have them assist us in doing it. 

4. We shall elect our own officers, control our 
own money, dues and assessments. 

5. We shall have meetings twice a month at a 



810 C olgate-Pdlmolive-Peet Co. vs. 

liall close to the T3lant. If the membership desires 
the meetings will begin at 4:15 p.m., and adjourn 
as soon as we have completed our business. 

6. We shall have the right to have meetings that 
will center around Our wages, working conditions, 
problems, and welfare. 

7. We Will Not Stand for Anyone, Big or Small, 
Telling Us That We Have to Do This or That Be- 
cause "They" voted for "It" Over in San Fran- 
cisco. 

Stewards Position 

We do not intend to stand Any trial under dicta- 
tor influence of the former officials. Such a trial 
would merely be a stage show — designed to impress 
a lot of people — the verdict would already be deter- 
mined — Guilty! For what"? Our right of free 
speech? Our right to Fight for the wishes of the 
membership? We are now members of the Inter- 
national Chemical Workers Union, A.F.L., we are 
in the Chemical industry and have no connection 
with the Warehouse group. 

What Caused the Lid to Blow Off 

(Truth Not Lies) 

Building up over the last year and a half — the two 
most recent items were — first the suspension of 
our stewards. Imagine if you please — over a year 
ago we carried out one of our few remaining rights, 
to elect, by an overwhelming majority, the Stew- 
ards of Our choice. At the time an attempt was 
made to shove in some characters who no one 
wanted. We took a secret ballot and defeated them 



N. L. R. B. et al 811 

without question. But in doing so we left a sore 
spot wliicli has never quite healed. The result be- 
ing that '^they" have been gunning for the Stew- 
ards and their friends who voted for them ever 
since. When the stewards got sick at being snipped 
at, fed up on carrying out responsibility that should 
have been carried out by the ofQcials, and felt they 
had a right to voice a protest, they were immediately 
ordered discharged by the Union. Prior to and 
leading up to this are such events as trying to ob- 
tain a paper from WLB, regarding vacation rates, 
Which Was Down at the Union Hall for Two (2) 
Solid Months, and in spite of requests, pleading, and 
almost begging, we could not get the officials to bring 
that one little piece of paper out to the plant. Is it 
our dues or our welfare they are interested in? 

Another recent event showing the interest of our 
Former officials, was a clear cut case of a broken 
contract, and in the meeting that lasted about two 
and a half (2i/>) hours, our supposed-to-be business 
agent strained himself with the grand total of just 
eight (8) words which were in answer to a direct 
question. What Would You Call Such Events'? 
Lazy*? Stupid'? Or plain disregard for the rights 
of employees at this plant '? We are sure we don't 
know the answer to That question, but — Brothers 
and Sisters, we are sure of one thing. No One Is 

Going to Fire Our Stewards without a H of a 

fight. That, Brothers and Sisters, Is Just What 
Happened ! 

Let Us Repeat (There Is Not and Never Has 
Been Any Racial Issue). This Lie in Itself Ought 



812 Colgate-Palmolive-Peet Co. vs. 

to Convince Those Who Would String Along With, 
and Pay Money to Elements That Would Stoop to 
Such a Trick! 

Don't Forget! 

Important news at your general meeting for 
Peet's employees, Wednesday, August 8th, 4:15 p.m. 
Finnish Brotherhood Hall, 1970 Chestnut Street, 
Berkeley. 

You can contact Your Union from 9:00 a.m., to 
3 :00 p.m., at HIghgate 5922, and from 3 :00 p.m., 
to 6 :00 p.m., at BErkeley 8807. 

Watch for Your Progress Rej^ort, we will be along 
again tomorrow. 

Note : Dues and fees will be collected at the Fin- 
nish Brotherhood Hall, between 3:00 p.m., to 6:00 
p.m., Daily. 



RESPONDENT'S EXHIBIT No. 3 

Progress Report 

August 10, 1945 

Preliminary conference was held August 9th at 
10:30 a.m., before Merle D. Vincent, Jr., NLRB. 
The Warehousemen's Union Refused the American 
rights of the Colgate-Palmolive-Peet Soap Company 
employees to choose their rightful collective bar- 
gaining agents. The Soap industry, a manufactur- 
ing plant, deals with a chemically made soap. The 
employees in this plant belong in the chemical in- 
dustry. You are chemical workers and can never 



iV. L. B. B, et al 813 

receive your rightful rates of pay as long as you 
remain in the Warehousemen's Union. The chem- 
ical rates for the majority of persons employed in 
this plant are much higher than you are now receiv- 
ing. 

Among your officers chosen to fight for you and 
represent you is Brother Eugene Lasaret-May. He 
was chosen by the membership because of his intelli- 
gence, leadership and sincerity. We are certain that 
the unanimous election of Brother Lasaret-May to 
the office of Vice-President of Your International 
Chemical Workers Union is a great advantage to 
all concerned. 

The signed membership to date in the Interna- 
tional Chemical Workerrs Union is well Over the 
two hundred (200) mark. Your Charter has been 
sent for and will be here in a few weeks. 

The firm position of the Stewards and Committee 
was conspicuous in contrast to the shaky position 
held by the Warehouse Officials. When your Stew- 
ards declared that the Warehousemen's Union did 
not respect the wishes of the membership at this 
plant they were certainly right. Before the NLRB 
the Warehousemen's Union Officials refused to per- 
mit you the American right of self organization 
and a chance to select your own bargaining agent 
by an election. The Warehouse Union fears the re- 
sults of an election and freedom of choice! They 
are compelling us to take action which will result 
in the Government ordering a formal hearing and 
then forcing the Warehouse Union to an election. 

Wlien the new contract and rights are securely 



814 C olgate-Palmolive-Peet Co. vs. 

in the hands of the employees again, a regular elec- 
tion by secret ballot will be held to determine your 
permanent officers and Stewards. Anyone in good 
standing with International Chemical Workers Un- 
ion will have the opportunity to assume the duties 
of these offices. 

We Sincerely thank those people who participated 
in our meetings, and have shown their sincere de- 
sire to select their own bargaining agent. 



RESPONDENT'S EXHIBIT No. 4 

September 12, 1945 
Bulletin No. 10 

In view of the fact that we, as employees of C.P.P. 
Co., have been temporarily deprived of the right 
to exercise our Am^erican rights of free thought and 
speech, handed down to us by our forefathers, we 
find it necessary to use this letter as a medium for 
expressing our thoughts and speech. 

Four of the biggest wars ever engaged in by this 
country were fought so men, women and children 
could have the rigrht that our Creator meant us to 
have. 

1 — The Revolutionary War — fought to free us 
from enslavement by England. 

2 — The Civil War — fought to free the colored 
race from enslavement by the white race. 

3 — World War I — fought to prevent Germany 
from enslaving the rest of the world. 



N. L. E. B. et al 815 

-World War II — just (oncludecl, the biggest 
and costliest in the history of man, fought 
to prevent the Germans, Italian and Japa- 
nese and other dictators from enslaving the 
rest of the world and destroying Democracy. 

All of these wars have ended in favor of freedom 
and liberty. However, we now have a few individ- 
uals right here in our midst who act and smell as if 
they might be descendants of Adolph Hitler. None 
of the individuals that we are going to sx)eak of took 
any part in this last war just concluded. We don't 
think they even know why this war was fought. 
Maybe they think it was just a little show to see 
who had the biggest guns and the most and largest 
aeroplanes and ships. We don't believe these in- 
dividuals know or care anything about our United 
States Constitution and the Bill of Rights, freedom 
of thought, freedom of action, freedom of speech, 
and freedom to choose their own representatives. If 
they have ever heard of them, they are undoubt- 
edly too stupid to grasp the meaning of them. For 
their information; the Constitution of the United 
States and the Bill of Rights give all Americans 
the right to legally do as they please and say what 
they want, as long as they stay within the laws of 
the country. No one has the right to tell others how 
they should live their lives. The four wars men- 
tioned above were fought to eliminate individuals 
such as these mentioned above. 

In this last war millions of men, women and chil- 
dren sacrificed their existence on this earth to free 
the world of such individuals and millions of others 



816 Colgate-Palmolive-Peet Co. vs. 

will suffer the rest of their lives. True, many of us 
have been deprived the means to our food, clothing 
and shelter, because we had the courage to be real 
Americans and thought our own thoughts, dis- 
agreed with that which we hated and despised; but 
this is only temporary. To those of you who want 
to know — They Will Be Back. Your rights, and 
ours, even though it is a temporary sacrifice for 
us, will be safe-guarded and restored. There will be 
an election in the very near future. Do not believe 
the lies that Chuck Grube is spreading around. 

It is hard to believe that a few unscruplous (which 
means 'without principle') individuals can go into 
a plant such as C.P.P. Company and tell the man- 
agement what to do, kick the employees around, 
permit such men as Chuck Grube to continue to in- 
sult his fellow-workers and try to coerce them and 
change their minds and even fire who they please. 
However, the wheels of justice grind slow but sure 
and in a matter of time these individuals will reap 
what they are sowing. We have decided that there 
is no individual, or group of individuals, big enough 
to take our American rights away from us, that 
have been protected and retained for us who are 
still alive at such a terrible cost in death and suf- 
fering. 

We have just started to fight and we don't intend 
to quit until we have been freed from enslavement 
in the C.I.O. 



.V. L. R. B. et al 817 

RESPONDENT'S EXHIBIT No. 5 

September 15, 1945 
Bulletin Number 11 — Progress Report 

Where is all the democracy that the officials of 
the Warehousemen's Union have been howling 
about ? 

All of you know, of course, about the secret meet- 
ing held last Wednesday. Aren't secret meetings 
supposed to be banned? Nevertheless, they had one 
and had such famous people as Fearless Ed, and of 
course, dear little Georgie Squires was there, the 
people 's choice — ha ! ha ! 

We hear their attorney was the main speaker of 
the evening and he had a wonderful crowd of almost 
23 people. At the meeting it was pointed out that 
your Progress Report made them very nervous and 
they didn 't like what was in it. Why ? Because it is 
the truth. We also hear their attorney admitted that 
there would be an election held at Peet's in less than 
two weeks, and all those terrible things that are in 
your bulletin must be stopped. 

That's what Hitler said about the allied under- 
ground of the freedom-loving peoples of the nations 
he conquered and crushed. However, even Hit]er 
knew he was beaten, and these dictators know it 
too. The employees of Peet's are not beaten or 
crushed and they know they will win, and soon. 
Even if the management has permitted Chuck 
Grube to intimidate, coerce and browbeat their em- 
ployees in the plant. Even if the Company has 
taken the interpretation of that phony contract that 



818 C olgate-Palmolive-Peet Co. vs. 

the Warehousemen's officials told them to take. 
Even if the Company did fire loyal employees be- 
cause they had the courage to be Americans. There 
are a lot of peoj^le in the plant who would certainly 
like to know what Mr. Woods found out when he 
took certain employees for a drink last Monday. Of 
course, the Company is supposed to be neutral. 

The dirty, little, yellow sheet put out by the 
Warthousemen's Union says, "Be sure to elect 
stewards from your departments." They elected 
stewards all right, not the people at Peet's, so that 
those stooges could jom hands with the Company 
and get a lot of people who had the guts to say they 
didn't like the Communist controlled organization 
around them discharged. It so happens there are 
stewards in Peet's — elected by the employees there 
and the Warehouseman's Union would certainly 
give a good deal to know who they are. You can be 
sure they are not stewards whom the Warehouse- 
men's Union and the Company choose to recognize 
as such. You can be sure there are no Fearless Eds 
or Georgie Squires included. 

A telegram has been received from the National 
Labor Relations Board in Washington and our case 
is being worked on and we expect to have some very 
good news for you in the near future. You will have 
an election not far off from today. Those employees 
who were discharged will have the right to vote. 
Remember, those 47 men and women who were dis- 
charged in behalf of all of us have not lost faith. 

Read your bulletins and be sure to see that they 
are distributed. A meeting will be held in the near 



N. L. R. B. et al 819 

future and we will look forwaid to seeing all of you 
there. 

There will not be a meeting Monday, September 
17th, unless you are further notified. 



EESPONDENT'S EXHIBIT No. 6 

September 18, 1945. 
Bulletin No. 12 — Progress Report 

In the last meeting of the Warehousemen's Union, 
Local 1-6, C.I.O., they tried to raise the dues 
seventy-tive cents. Do you remember when it was 
stated by officials of the Warehousemen's Union 
that dues would not be raised ? When they said our 
stewards were liars % Well, this proves who told the 
lie. Our stewards were one hundred per cent cor- 
rect. 

We believe a good many employees at Peet's 
would like to know what happened to the money 
that was supposed to go to the American Allied 
War Relief Fund. We understand that they had a 
mighty tough time about putting over the seventy- 
five cent raise in dues. We understand it was voted 
down twice in the same meeting but by hook or 
crook it was put through. Remember — "By their 
works thou shalt know them." A labor union is only 
as good as the officials who guide the destiny of that 
union and you can see what's happened to the 
Warehousemen 's Union — Ahem. 

Paul Heide must have been very embarrassed 



820 Colgate-PalmoUuc-Peet Co. Vb. 

when every person called to be a member of the 
Trial Committee refused to accept. We understand 
Heide was angry and stated that he was surprised 
that there was so little interest shown. Weren't the 
people interested in the C.I.O.? After refusal, a 
Trial Committee was selected. May be pulled the 
names out of his pocket — just in case. Certainly no 
one would want to be on a Trial Committee to try 
people for freedom of speech and the courage of 
their own American convictions, and we salute those 
people who refused. Did you know that it was 
stated at the meeting that Sherman, Lonnberg and 
Thompson would not be given a trial — that they 
were through? Is that American"? Are they dic- 
tators that they can say who shall be through and 
who shall not be through ? We know the employees 
of Peet's will give them their answer and fling the 
challenge of freedom in their faces. If tactics such 
as these are permitted, dictatorship will spread over 
our entire nation. 

In the Labor Herald of September 13, the Ware- 
housemen's Officials must have known that the ma- 
jority of the employees of Peet's disliked and con- 
sidered as intruders Charlie Leacock, Fearless Ed 
Bopp, Oeorge Squires and Manuel Da Cruz, so they 
gave their life histories and told them how badly 
these men want the C.I.O. Well, when this election 
is over, they will probably need the C.I.O. Leacock 
says, "I don't ask them to do what I say, just be- 
cause I say it — I just ask them to do the right 
thing." Leacock, you tell the people who to do and 
you expect them to do it. The employees at Peet's 



A^. L. R. B. et al 821 

don't need to be told the I'igbt thing to do — they 
already know. Maybe these men need to find out 
what the functions of stewards are. They should 
know that stewards are supposed to fight for the 
people and be their servants, not dictators, not 
threaten the people with what will happen to them 
if they don't do so and so. Leacock stated, "The 
Warehousemen have been organized at Colgate- 
Palmolive Peet Company since 1936. We organized 
and got these benefits." Maybe Heide & Co. should 
tell Leacock the truth. Evidently they haven't, so 
we will. The people at Peet's didn't know the Ware- 
housemen's Union existed in 1936. The employees 
belonged to I.L.A. and a Federal Labor Union in 
1936. The Warehousemen's Union never secured 
any benefits for the employees. It was the workers, 
through their own stewards, elected by the majority 
of the employees, who made conditions as they are. 
Fearless Ed says, " Leacock 's right, they'll just have 
to start negotiating over again."' It is about time, 
isn't it'? Fearless Ed says, "The air needed to be 
cleared up." Fearless, you're right, the air will be 
cleared up and you, Leacock, Squires, and Manuel 
Da Cruz, will know just what we mean. Remember, 
you cannot tamper with the people's freedom. Re- 
member, you cannot threaten, browbeat, and curse 
American men and women. Remember, you cannot 
— not in America — take people's food, clothing and 
shelter and their right to a decent, honest living 
from them, because you might not like them — and 
there isn't room in American for anyone like that. 
Remember, "A new broom sweeps clean." 



822 Colgate-Palmolive-Peet Co. vs. 

When the International Chemical Workers Union, 
Local 233, wins this election, and as soon as possible 
thereafter, there will be a hiring hall, centrally 
located, for the members of the International Chem- 
ical Union, Local 233. 



RESPONDENT'S EXHIBIT No. 7 

September 27, 1945 
Bulletin No. 13 — Progress Report 

No doubt all or you have met the new Shop Stew- 
ard, Pauline Goulard. Cute tricks the C.I.O. offi- 
cials are pulling these days. Yes, it is true, approxi- 
mately fifteen persons, out of 330 employees, Toted 
to have Pauline be the Shop Steward. The C.I.O. 
officials met certain employees at the gate just be- 
fore midnight. Fumiy — we could never get them 
out before. Now they are out at the plant day and 
night. Wonder why? Is it because they know an 
election is very, very near? Now, all the so-called 
stewards are just one big, happy family. They think 
they have the Company behind them, and they will 
have a lot of fun, threatening and browl)eating their 
fellow workers, but they are only fooling themselves. 
No wonder the employees of Peet's intend to vote 
for the International Chemical Workers Union, 
A.F.L. At least they'll get a square deal there. 

Remember the man the Company put on Super- 
suds as packer? Did he get the women's rate of 
pay? No, he received a man's rate of pay for doing 



N. L. R. B. et at 823 

the same work under the same conditions. That's 
the fault of the C.I.O. officials. The International 
Chemical Workers Union, A.F.L., believes that 
when a woman does the same work, under the same 
conditions as a man, she should receive the same 
rate of pay. Why do the women in Colgate-Palm- 
olive Peet Company pay union dues into the C.I.O. 
for that sort of treatment? We now have a chance 
to change that system, and a lot of other undemo- 
cratic, un-American methods that have been going 
on in that plant since the C.I.O. came up there. 

About that election — The rumor from Mr. Wood's 
office, that was spread throughout the plant, could 
have been true. Mr. Howard received a telegram 
from Washington, stating that a decision would 
probably be handed down this week. That could 
have been last Monday. Mr. Crum, the Company 
attorney, was in Washington last Monday and could 
have telephoned Mr. Woods about our election. The 
National Labor Relations Board in Washington, 
after their decision, would Air Mail the letter to 
the Regional Board in San Francisco, and then the 
parties involved would g^i together and set the da'.e. 
Mr. Ho^vard called the N.L.R.B. Tuesday afternoon 
and they had not heard of any decision. He called 
Mr. Woods and Mr. Woods denied that Mr. Crum 
had called him and told him an election had been 
ordered. However, we know an election will hQ 
ordered — and soon — and we know the I.L.W.U., 
Local 1-6, C.I.O., will lose that election and we will 
have a people's organization, run b}" the employees, 
for the employees, and we also know that a ^'nev/ 
broom sweeps clean." 



824 Colgate-PalmoUve-Peet Co. vs. 

Those men and women whose livelihoods were 
taken away from them, because they stood up and 
fought for the rights of all of us, are faithful and 
enduring and know that you are backing them up. 

Of course you know of the marvelous fight now 
under way, against the adoption of a new union con- 
stitution, by the Marine Cooks and Stewards Asso- 
ciation, C.I.O., and of the paper they are issuing, 
showing definitely what a grip the Commmiists are 
trying to get on our American men and women. You 
will hear more about this later. 

We want you to know that another group of em- 
ployees, all colored, from another company, have 
now joined your local, International Chemical 
Workers Union, A.F.L., Local 233, and they will 
be initiated, with your approval, at your next meet- 
ing. The International Chemical Workers Union, 
A.F.L., Local 233, sincerely invites every negro at 
Colgate-Palmolive Peet Company to become a mem- 
ber. 

By the way gals — how do you like your wonderful 
raise of five cents, and also your wonderful raise to 
$3.00 dues? They gave you five cents and took it 
right away from you and made you pay the C.I.O. 
Nice game, if you can work it. 

You will be notified of any official moves. If you 
are in doubt, or hear any rumors, or you have any- 
thing you feel the membership should know, you 
know who to get in touch with, and what will be 
done about it. 



A^ L. R. B. et al 825 

RESPONDENT'S EXHIBIT No. 8 

September 29, 1945. 
Bulletin No. 14 — Progress Report 

At 3:15, Friday afternoon, a Special Delivery, 
Air Mail letter was received from Washington, and 
in it was the announcement all of us have been wait- 
ing for. The election has been ordered by the Na- 
tion La1)or Relations Board in Washngton, D. C, 
and signed, sealed and delivered to us. \¥e wonder 
how Heide & Co. feel now. How the Compan}^ feels, 
when they said they had a valid contract. When 
they kicked our brothers, sisters, friends, wives and 
husbands out of the plant. 

Mr. Howard will meet with the National Labor 
Relations Board, officials of the Warehousemen's 
Union, and the Company, just as soon as it can 
possibly be arranged, the early part of next week, 
and set the day for the election. 

The order directing the election states, "We 
hereby direct that the question concerning represen- 
tation shall be resolved by an election by secret 
ballot among the employees who were employed dur- 
ing the payroll period immediately preceding the 
day of this direction (September 26, 1945), includ- 
ing employees who did not work during said payroll 
period because they were ill, or on vacation or tem- 
prorarily laid off, to determine whether they desire 
to be represented by the International Chemical 
Workers' Union, A.F.L., Local 233, or by the In- 
ternational Longshorehemen's and Warehousemen's 
Union, C.I.O., Local 1-6, for the purpose of collec- 



826 C ol gate-Palm oUve-Peet Co. vs. 

tive bargaining." In other words, brothers and sis- 
ters, we knew what we were doing and, as you have 
already found out, the C.I.O. officials and the Com- 
pany did not know what they were doing; they 
guessed. 

Those men and women whose livelihood has been 
taken from them shall return, and they shall vote. 
There will he several special meetings in the near 
furture and almost everyone who works at the plant 
shall be allowed to attend. Wait for your next 
Progress Report. 

Those of you who wish to pay dues will be able 
to pay them at the meeting, as usual. 

Once again, the International Chemical Workers' 
Union, A.F.L., wishes to invite every colored man 
and woman in that plant into the International 
Chemical Workers' Union, Local 233, A.F.L. We 
want you, and we want you to know that your prob- 
lems will be everyone's problems. Remember — "All 
for one, and one for all." 



RESPONDENT'S EXHIBIT No. 9 

October 2, 1945. 

Bulletin No. 15 — Progress Report 

Important ! 

There will be a special meeting Wednesday after- 
noon at 4:15, at the Finnish Brotherhood Hall, 
Mr. Howard and the Union Committee will meet 
with the Company officials and the C. I. O. officials 



A^. L. R. B. et al 827 

and decide the actual date of the election. Be sure 
to be there to find out the date and ha^'e all of 
your questions answered. 

Once again, the International Chemical Workers 
Union, Local 233, A.F.L., extends a sincere invita- 
tion to all of the colored people in this plant to join 
the International Chemical Workers Union, Local 
233, A.F.L. and be j^resent at the meeting. This 
meeting will be open to almost every employee at 
Feet's. 

Your September and October dues will be ac- 
cepted Wednesday afternoon at the metting. Re- 
member, now is the time to get on the winning side. 



RESPONDENT'S EXHIBIT No. 10 

October 9, 1945 

Bulletin No. 16 — Progress Report 

Many of us have read the very, very phony bulle- 
tin put out by the Warehousemen's Union, C.LO. 
They mention that wages, sick leave, working con- 
ditions, closed shop agreements, pensions, seniority 
and future job security will be at stake when you 
cast your ballot. How right they are! They talk 
about future job security. There will be no future 
job security if the C.LO. wins this election. They 
have already kicked out and taken away the means 
of livelihood of 45 employees, and from what we 
hear, if the C.LO. wins, there are 150 or more names 



828 Colgate-PalmoUve-Peet Co. vs. 

Respondent's Exhibit No. 10 — (Continued) 
on their list. One of those might be you. How do 
you know? 

Why don 't the Warehouse Officials tell the truth ? 
Since when did the C.I.O. ever give us any pensions, 
seniority, closed shop, w^orking conditions (ahem!) 
and — so far as our wages are concerned, we are 
chemical workers, not warehousemen, and can never 
receive Chemical Workers' rates (they are much 
higher), so long as we are members of the Ware- 
housemen's Union, Local 1-6, C.I.O. Our wages 
have been low, and the treatment afforded the 
women in that plant by the C.I.O. Officials is the 
rottenest deal so far. As far as their program goes, 
anyone should be able to see through that. There 
is nothing new about a forty hour work week, and 
the minimum for men and women is certainly "ba- 
loney. ' ' 

How can we trust the C. I. O. Officials when they 
have betrayed us and lied to us in the past? What 
assurance have we that they will not continue to do 
so in the future? The women should have had that 
five cents increase in 1941 — why did they have to 
^vait almost four years to obtain it for them ? Paul 
Heide admitted, under oath, that they hadn't even 
prepared a schedule for approval from the War 
Labor Board. Regarding the penalty for hard and 
dirty work — the Chemical Workers' Union has had 
that for almost five years. 

They said they had recently received over $12,- 
000.00 in back pay for shift workers and women. 



N. L. R. B. et al 829 

How come some of the workers at Clorax went back 
four months (1st day of Jmie 1944) and ours only 
went back to October 12, 1944. Quite a little differ- 
ence, eh? At Port Chicago the Chemical Workers 
Union has just won a case of almost $150,000.00 in 
back pay, not for women alone, but for everyone 
(and there are only half as many workers there as 
at Peet's), and have one of the finest agreements in 
the country. West Vaco Chemical Company, Nevr- 
ark, has an outstanding agreement in wages and fine 
conditions, and there were only five or six persons 
voting in the election at West Vaco. 

They asked if Chemical Workers Union, A.F.L. 
is strong enough locally and nationally to achieve 
demands for more wages, shorter hours and better 
working conditions. Not only are we strong enough, 
but we have in eifect agreements throughout the 
State of California, since the close of the war, which 
have taken care of post-war problems, 25% in- 
creases, equal pay for equal work for women, closed 
shops, and numerous other advantages, and we don't 
have to strike to get them. The International Chem- 
ical Workers Union believes strikes should not be 
called, except as a last resort. Evidently the C.I.O. 
is not interested in your food, clothing and shelter 
and how you get it, when they call a strike or kick 
somebody off the job. We hear that the C.I.O. Offi- 
cials want to pull a big strike at Colgate-Palmolve 
Peet Company, if they win this election. Are you 
prepared to go on strike for the C.I.O. for a couple 
of months ? 

Not only is the Chemical Workers Union strong 



830 Colgate-Palmolive-Peet Co. vs. 

enough to get a closed shop for you, but we are 
strong enough to defeat the C.I.O. in this election 
by a great majority. They say this election is your 
life, which is probably true. Life doesn't mean too 
much to those who do not hesitate to kick people 
out of their jobs, just because they had the courage 
to say they didn't like the dictatorial methods of the 
Warehousemen's Officials. How can we continue to 
pay our dues to a union that threatens us, prohibits 
us from going on our jobs, kicks our brothers, sis- 
ters and friends out of their jobs, and which has re- 
fused, for years, to come down to the plant and help 
settle our problems? A union which will shove in 
appointed Shop Stewards who will make people 
afraid to speak to friends and neighbors on the job, 
for fear they might lose their own jobs? 

Are you still willing to fight for the freedom that 
is America? Our men and women fought for four, 
long years across the seas to preserve this freedom — 
all you have to do to preserve your freedom in this 
plant is to vote for the Chemical Workers Union, 
A.F.L., Local 233. Is freedom worth that much to 
you? We think it is. 

Of course, you laiow of the battle the rank and 
file committee is putting up in the Marine Cooks 
and Stewards Union, C.I.O., because of a communist 
constitution they are trying to shove down the mem- 
bers' throats. Do you know that the officials of the 
Marine Cooks and Stewards Union, C.I.O., kicked 
out the most popular members of their miion? Re- 
member — a leopard does not change its spots. Cer- 
tainly, if you are honest with yourself, you cannot 



N. L. E. B. et al 831 

vote for an organization sucli as that. Remember — 
it was the Warehouse Officials, C.I.O., who tried 
(but failed) to inject discrimination into this battle. 
They are the ones who are continually reminding 
the negro that he is a negro. They are the ones 
who are continually telling the negro he is being 
discriminated against. Surely no one else in this 
world knows the negro's problems as well as he 
does, himself, and he does not find it necessary to 
have these problems brought before him by the 
GJ.O. Warehouse Officials. 

Chemical Workers' Union, Local 233, A.F.L., will 
win by an overwhelming majority. Don't be fright- 
ened by the propaganda put out by the C.I.O. — con- 
sider it as such — and vote for the union you knov/ 

will best represent your interests 

The International Chemical Workers Union 
Local 233, A.F.L. 



RESPONDENT'S EXHIBIT No. 11 

October 11, 1945. 

Bulletin No. 17 — Progress Report 

Isn't it strange that scrap iron from the United 
States to the Japs was returned to us in the form 
of bombs and bullets, ready to enslave us and take 
from us our freedom of speech? Isn't it strange 
now, that our money that we earned and paid into 
the Warehouse Union as dues, is being used to pay 



832 Colgate-PahnoUve-Peet Co. vs. 

the salaries of Warehouse Union Officials, to fight 
us, kick us off our jobs, threaten us and deny us 
our freedom of choice and speech? We hope and 
pray that we do not have to go through another 
Pearl Habor, within our own nation, before we rec- 
ognize an enemy. 

We, who have fought for so many years to main- 
tain seniority as a means of security from unjust 
lay-offs and discharges, have seen our seniority dis- 
regarded as a non-existing factor by those we have 
paid and who are supposed to help us retain it. In 
reality, they have gone out of their way to destroy 
in the Colgate-Palmolive Peet Plant the very things 
it has taken us so long to build. We joined a union 
to unite our strength and money, to obtain justice 
from a Company who did not recognize seniority, 
vacations, relief periods, time and one-half for more 
than eight hours, double time for Sundays and holi- 
days, shop stewards and our right to bargain collec- 
tively. The Warehousemen's Officials and the Ware- 
housemen's Union did not get these rights for us, 
we, the employees of Colgate-Palmolive Peet Com- 
pany, obtained these things without their help. We 
did not force them out of the Company without a 
long and hard-fought battle. Your Shop Stewards, 
elected by all the people at Peet's, with your help 
and your consent, are the ones who achieved them, 
and when one of our brothers asked the Officials of 
the Warehousemen's Union for help, they only 
laughed and said there were more important plants 



A^ L. R. B. et al 833 

than Peet's. Our strength was in the united stand 
we could present. 

Now a few selected officials of the Warehouse- 
men's Union have chosen to take the old line Com- 
pany policy of laying off employees, regardless of 
senority, changing them to different departments, 
regardless of how many years they have put in, 
kicking them out and taking their means of food, 
clothing and shelter from them. Is it because they 
feel they are the supreme authority and have foi- 
gotten who gave them their jobs to begin with? 
Well, brothers and sisters, we have fought this thing 
before and won and now we are in the fight again 
and we don't care if it's the Company or the Ware- 
house LTnion Officials, or who the H it is, we 

know how to fight and we will and must retain oui' 
unity. All 45 employees outside the plant, plus 
around 300 inside, must have one purpose in mind — 
defeat the xjhony Warehousemen's Union, C'.I.O., 
officials in the coming election by voting for the In- 
ternational Chemical Workers' Union, Local 233, 
A.F.L., by such a huge majority that the company 
and the former union will never again attempt to 
trample on our rights. 

Remember, the Company is watching this very 
closely and thousands of men and women in labor 
are also watching this election very closely. Dare 
we fail so many? Even if we win by a close major- 
ity, the Company might take the position that we 
are divided so 

We must will by a huge vote. 

Not one of us can leave even the most remote 



834 Colgate-Palmolive-Peet Co, vs. 

item undone. Nothing, regardless of how small, 
must be overlooked. Talk to your fellow-workers, 
see that they understand the issues, be sure they get 
there to vote. Remember, the time is short now and 
you must be alert to avoid being left in the clutches 
of a thing, which in the opinion of many, would stop 
at nothing. 

Because of the lies and deceit of the Warehouse 
Union Officials, we realize some confusion prevails 
in the plant, so we must make two things clear: 

(1) Any employee of Peet's, who was hired be- 
tween July 31, 1945, and September 23, 1945, who 
has been required to pay an initiation fee to the 
Warehouse Union, between the above dates, will not 
be required to pay another initiation fee to the 
Chemical Workers Union, Local 233, A.L.F. 

(2) All those employed at Peet's, prior to July 
31, 1945 (who have not already joined), need only 
pay $2.00 Initiation Fee to become members of this 
fighting union. 

The election will be held Tuesday, October 16, 
1945, in the Clubhouse, 7th and Pardee Streets, 
Berkeley ; 6 :00 a. m. to 8 :30 a.m. and 2 :00 p. m. to 
5 :30 p. m. Remember, this may be your last oppor- 
tunity to save yourself and others from a real 
strangle-hold. This fight goes far deeper than just 
union against union. Sinister purposes, deep-seated 
hatred, long standing vengeance — are very likely to 
be your reward if we should, by chance, lose this 
election. So, for your own sake, do what you can 
now. 



?■, L. E. B. ct al 835 

RESPONDENT'S EXHIBIT No. 12 

October 12, 1945. 

Bulletin No. 18 — Progress Report 

How long must we continue to be threatened, co- 
erced and intimidated ? How long must we continue 
to permit C.I.O. officials to stop us on the streets 
and ask us who we will vote for? Don't they know 
this is America — that our vote is secret and they 
will knov/ only too w^ell how we have voted by 7 :30 
Tuesday night? They will know only too well that 
w^e have on by a large majority and rejected their 
un-American, communistic, slimy tactics. How long 
must we continue to permit men with the intelli- 
gence of Leacock to physically attack our own peo- 
ple in the plant we have helped build? Yes, it is 
true, Leacock, having authority for the first time in 
his life, asked one of our brothers on the job who 
he was voting for and when our brother said it was 

none of his D business, Leacock followed him up 

the stairs and attempted to beat him up. Lucky 
for Leacock that our brother kept his head or he 
might have been in the hospital today. Are these 
the kind of stewards you want to represent you for 
better wages, hours and conditions of employment? 
The day of the club is over — we must have states- 
men — intelligence — to win our battles — not ignor- 
ance. However, the C.I.O. Warehousemen officials 
believe in threatening, coercing and frightening peo- 
ple to the extent that they do not even dare to say 
who they are for on their own job for fear they will 
be kicked out. 



836 Colgate-Palmolive-Peet Co. Vb. 

Did you hear about the strike the C. I. O. officials 
want to pull at Peat's when this is over? Are you 
prepared to pound the pavements without any 
money for two or three months'? In order to save 
yourself from this, be sure to vote in the Right 
Hand Corner of your ballot next Tuesday, for the 
Chemical Workers' Union, A.F.L. Remember, all 
laid off employees who were temporarily kicked out 
by the dirty tactics of the C.I.O. officials will vote 
in the Right Hand Corner for the Chemical Work- 
ers Union, A.F.L. Remember, there are 150 or 
more employees that the C.I.O. officials have already 
got ear-marked to kick out of their jobs if they win 
this election. So get your friends — talk to them — 
see them on the job — on the street — in their homes 
— and tell them, in order to save their jobs they 
must vote for the Chemical Worker's Union, A.F.L., 
in the Right Hand Corner. Remember — we welcome 
into the Chemical Workers Union, A.F.L., any em- 
ployee who is honest and decent, regardless of his 
race, creed or color. The C.I.O. officials are the 
ones who have continually brought up the racial 
issue. Don't be fooled — they are only seeking to di- 
vide and conquer. 

The International Chemical Worker's Union, Lo- 
cal 233, A.F.L., has a fine contract drawn up ready 
to be considered by all parties concerned, just as 
soon as this election is over, and it will increase your 
wages and better the hours and working conditions 
in that plant. Remember — you are Chemical Work- 
ers and you can never receive the high Chemical 
Worker's rates if you vote for the Warehousemen's 



iV. L. n. B. et al 837 

Union. We do not intend for anyone to work for 
less than $1.00 an hour in that plant, man or woman, 
equal pay for equal work for women — and many 
other conditions — and above all — freedom to do and 
say what you want without fear of being kicked out 
of your job. 

Vote for the Chemical Worker's Union, A.F.L., in 
the Right Hand Corner of Your Ballot 

Don't forget the special meeting for the swing 
shift workers at 1:00 o'clock, in the Finnisli Broth- 
erhood Hall, Monday, October 15th, and the special 
meeting for the day workers at 4:15 P.M. of the 
same day. Don't be afraid to attend — the C.I.O. 
won't be able to huxt you any more. 

You don't need to have your book with you or 
your dues paid up in order to vote. The United 
States Government regards you as employees only 
and this election is being held to determine what 
union you wish to belong to. 



RESPONDENT'S EXHIBIT No. 13 

October 13, 1945. 

Bulletin No. 19 — Progress Report 

Remember ? 

Remember when we were forced to pay political 
action dues and our money was spent in behalf of 
candidates we were actually against? Was all our 
money that was forced from us spent for the pur- 



838 Colgate-Palmolive-Pcet Co. vs. 

pose it was intended for — or was it spent for — some- 
thing else? 

Remember when officials of the Warehouse Union, 
G.I.O., forced us to buy dance tickets and if we 
didn't, we couldn't pay our dues and if we didn't 
pay our dues we were kicked out or fined. Remem- 
ber they didn't even consult the membership — just 
forced us to buy them — or else? 

Remember vvlien our stewards requested the 
Warehouse officials to come to Peet's to adjust our 
diftereiices and they refused? Remember? Remem- 
ber months that many of us didn't even see an offi- 
cial of the Warehouse Union ? They were willing to 
take our dues but gave us nothing in return for 
them. 

Remember when the members who worked at 
Peet's went to a meeting and we had nothing to say 
about our problems? * * * They were decided by 
strangers and people from other plants. 

Remember when the Warehouse officials and the 
Company officials said we could not have an elec- 
tion? When the Company permitted Chuck Grube 
and the officials of the Company to say we would 
not have an election until February, 1946? When 
the Company permitted certain employees to brow- 
beat, lie, threaten and coerce the employees under 
them ? 

Remember when our dues were $1.50 per month 
and we had three doctors and $250.00 death bene- 
fit? Remember * * * the C.I.O. officials took these 
conditions away from us * * * they said too much 



N. L. R. B. et al 839 

money was going for sick beneiits. (As if they cared 
whether the people were sick or well.) 

Remember when the Warehouse Officials, C.I.O., 
transferred around sixty thousand dollars from the 
death benefit fund to the general fund? Why? 
What happened to our money? Remember when 
they said they would not raise the dues and in less 
than eighteen months they decided to raise them 
and had their stooges at the meeting and did raise 
them — over our protests'? And remember, they are 
now forcing the women to pay the same dues be- 
cause they got a raise of a few cents. Did you 
know the Warehouse Union officials are planning 
to raise the dues to $4.00 per month? * * * If they 
win * * * which they won't! Remember, when we 
decided to stand behind our stewards because they 
fought for our rights? When you w^alked out for 
two and a half days because you were determined 
to stand up and see that your American privileges 
were not trampled upon? 

Remember when we delegated four employees to 
meet with the Management in behalf of our stew- 
ards and when they arrived they met the officials 
of the Warehouse Union, C.I.O. ? Remember how 
they were insulted in the Management's offices and 
then kicked out of their jobs? 

Remember when 25 men stopped 8 women and 5 
men and would not even let them go on plant prop- 
erty, and when the women proved their books were 
paid up, those lousey C.I.O. officials just laughed 
and kicked them off their jobs. 



840 Colgate-Pahnolive-Peet Co. vs. 

Remember when the Warehouse Union, C.I.O., 
arranged to inject some phoney stewards over us, 
and when some of those i^honey stewards let a lit- 
tle power go to their heads and tore some of our 
fellow-employees' shirts from them because they 
decided to vote differently? 

Remember when one of those stewards and some 
strangers went into the plant on one shift and 
threatened one of our people if they continued to 
even talk about the A. F. of L. f 

We Must Vote for the Chemical Workers' Un- 
ion, A.F.L., in the Right Hand Corner. 

We must, and will, destroy this rule-by-force. For 
they cannot kick our pals out — they cannot kick any 
of us out. Let's vote in the Right Hand Corner — 
for a free union. 

Remember, it is for you to decide — Democratic 
freedom (the right to speak — to think — to act — as 
Americans) or do you prefer threats, violence and 
dictatorship of the C.I.O. branch of communism — 
Vote in the Right Hand Corner. 

Remember, Asia, China, Poland, now completely 
controlled by Russian Communism * * * next all of 
Europe * * * America can be next * * * America is 
the last hold out of Freedom * * * Vote in the Right 
Hand Corner. 

Remember — your vote now saves your future se- 
curity, your job, your home, your American rights, 
your country, from the curse of communism. Vote 
in the Right Hand Corner. 

Remember — your boy and mine * " * do you want 



N. L. B. B. et al 841 

tbeni to come home to fight our battles here on the 
home front, too*? Vote in the Right Hand Corner. 

Remember — Divide and conquer is the program 
of all dictatorships. We must all Vote in the Right 
Hand Corner to show our strength. 

Remember the struggle of the C.I.O. (tool of 
Communist Russia) is seeking to divide working 
men and women against each other! 

Remember — the C.I.O. will use color, race and 
creed to divide and conquer. Your militant effort 
Now can change the tide. Our future is too impor- 
tant to let Moscow tell us how to think and act. 



RESPONDENT'S EXHIBIT No. 14 

Bulletin No. 20 — Progress Report 

October 15, 1945. 

Are You Interested in Dollars and Cents? 

The officials of the Warehouse Union are not 
content with misleading the people, permitting 
their stewards to coerce their fellow-workers on the 
job — not content to permit an election based solely 
on the truth, as a result they sent to tlie homes of 
Peet's employees a Inilletin showing rates and cer- 
tain conditions between Peet's em.ployees and West 
Vaco Chemical Company employees. For the infor- 
mation of the officials of the Warehouse Union, the 
conti-act they spoke of was in effect in 1937. We 
don't know whether this is due to their ignorance 
and deceitfulness, or just a continuance of the very 
stupid blunders they have been making, when they 



842 Colgate-Palmolive-Pect Co.va. 

refer to a contract that was done away with over 
eight years ago. However, even then the employees 
at Vfest Vaco Chemical Company were receiving 
sv/ing shift and graveyard differentials and higher 
rates than are now being paid at Feet's — all this — 
over eight yeurs ago 

Fur example: What you will receive when 3^on 
vote in the Riglit Hand Corner for the Chemical 
Worker's Union, A.F.L,, is as follows: 

Chemical 
Warehousemen's Workers 
Rates Rates 

Sea Foam Machine Opsr $ .OGi/o $1.25 

Palmolive Maeh. Opcr l.OOi/o 1.25 

All Maintenance Dept. Rates.... 1.39 Up to 1.60 

Laborers 921/2 From 1.00 up 

Pressmen 961/0 l-H 

Driers I.OO1/2 1.25 

Soap Blov/ers I.OOI/2 1-25 

Women's Rates 

Machine Operator 80 1.00 to 1.11 

Soap Packers 75 1.00 

Remember — ^Otlier facts enter into the working 
conditions in the plants referred to by the officials 
of the Warehouse Union, of which they were not 
aware, or did not care to mention — some are — In 
many of the plants where the Chemical Worker's 
Union has contracts, the Company furnishes mod- 
ern homes for $18 per month, and furnishes free 
meals for overtime work in excess of the regular 
eight hours. Also they have access to Company 
gardens in which to raise their own food — all 
chemical plants have been getting shift differentials 
for years, not just retroactive to October 12, 1941. 
In most plants where we have Chemical Worker's 



.V. L. R. B. et at 843 

Unions, their working clothes are furnished by the 
Companj^ 

Wouldn't the 45 men and women who have been 
kicked out of their jobs because they wanted decent 
working conditions feel silly to return to Peet's 
at rates far below^ those they were receiving? Do 
you think for a moment they would promote a 
program for lower rates'? 

Don't let the Warehouse Officials lie to you and 
get away with it. Chemical Workers are going for 
rates that will exceed the Warehouse Union scale 
by A\ Least 71/2^ per hour. Peet's does not have a 
closed shop, they only have preferential hiring and 
the Chemical Workers Union intends to tie up the 
loose ends of this and many other shameful con- 
ditions that have been allowed to exist and enter 
into a contract with the Company that v/ill make 
us proud to belong to a union — an honest union is 
sorely needed in this town and w^e intend to sup- 
ply it. 

At Springfield Cedar, the employees sweat under 
a terrible system by agreement of the Warehouse 
Union and the Company. A piece work system that 
all real American labor, men and women, should 
l)e against. The Officials of the Warehouse Union 
are permitting the employees of Springfield Cedar 
to work for rates as low as fifty cents an hour — 
starvation wages. Why don't they do something 
a])out these people, or have they neglected them as 
they have the employees at Peets? Is it because 
they fear they will lose your dues if they don't 
promise $1.15 per hour? 



844 Colgate-Palmolive-Peet Co. vs. 

You are listed as commercial workers aud the 
Warehousemen could not and \Yould not send you 
to the docks and terminals with a higher rate of 
pay until every available man holding terminal 
and dock books, and there are plenty of them, has 
been sent to work, so — they lied to you again — their 
contracts mean nothing to you. However, when the 
Chemical Worker's Union wins this election to- 
morrow, and just as soon as i^ossible, thereafter, 
we will have our own hiring hall, owned by you 
and operated for you. 

Remember, all of you who are colored, it is the 
Warehousemen's Union Officials, C.I.O. who are 
constantly reminding you of your color. They want 
to set you against one another so that the}' may 
divide and conquer, and we, the Chemical Workers 
at Colgate-Palmolive-Peet Company sincerely in- 
vite you to join the Chemical Worker's Union, 
A.F.L., by marking (x) in the Right Hand Corner, 
at the election tomorrow. 

Remember this election is to determine which 
union you wish to join and no one knows, not even 
the Warehouse Officials, how you vote — you alone 
know that, but in case you become confused, mark 
(x) in the Right Hand Corner. 

What is left of the Warehouse Union contract 
at Peet's will be through, done and over with when 
you vote Tuesday in the Right Hand Corner. 

Correction: Bulletin 19 — typographical error 
"we had three doctors" corrected statement to read 
"we had free doctors". 



N. L. R. B. et al 845 

RESPONDENT'S EXHIBIT No. 15 
Sample Ballot 
''Vote Right in the Right Hand Corner" 

United States of America 
National Labor Relations Board 

Official Secret Ballot 

This ballot is to determine the collective bar- 
gaining representative, if any, for the unit in which 
you are employed. If you spoil this ballot, return 
it to the Board Agent for a new one. 

Mark an "X" in the square of your choice 



International 


NO UNION 


International 


L/ongshoremen and 




Chemical Workers 


"Whs 'emen Union 




Union Local No. 233 


Local 1-6 




A. F. L. 


C. I. 0. 






[] 


[] 
Remember 


[X] 



(Take me to the polls with you) 

(1) Remember — Your job is at stake in this 
election. 

(2) Remember — To Vote for Your own Union, 
Control Your own money, Elect Your own Officers 
and Stewards. 

(3) Remember — This is Your country, are You 
willing to sacrifice it for Communism ! 

(4) Remember — Your vote in the "Right Hand 
Corner" will return Your friends back to work, 
(They fought for you — you vote for them) also 
protect Your future. 



846 Colgate-Palmolive-Peet Co. vs. 

Place Your ''X" in the Right Hand Corner 
Bring Us Back to Work 

Your Stewards and Friends Fought for You— 
Vote for Us and Have a Good Clean Union 



RESPONDENT'S EXHIBIT No. 16 

[Warehouse Union Letterhead.] 

July 31, 1945. 

Colgate, Palmolive, Peet Company, 
6th & Carlton Streets, 
Berkeley, California. 

Att.: Mr. C. A. Altman 

Dear Mr. Altman: — 

This is to notify you that the employees named 
below have been suspended from membership in 
this union and are no longer members in good stand- 
ing. 

Pending the determination of charges which have 
been filed against these persons in accordance with 
our Constitution and By-Laws, you are requested, in 
accordance with our Agreement, to remove these 
persons from your employ until such time as you 
receive word from us in regard to their status as 
members in this union. 

Ed Thompson, 1034 Virginia Street, Berkeley, 
Calif. 



N. L. R. B. et al 847 

H. Lonuberg, 1245 - 60th Avenue, Oakland, 
Calif. 

Lincoln Olsen, 623 Kearney, El Cerrito, Calif. 

William Sherman, 1515 Kains Avenue, Berke- 
ley, Calif. 

Your inmiediate attention to this request will be 
appreciated. 

Very truly yours, 

/s/ PAUL HEIDE, 

Vice-President. 
PH:ES 
owu-cio 
Special Delivery 



INTERVENER'S EXHIBIT No. 1 

[Stamped] Warehouse Union Local 6, ILWU 
158 Grand Avenue, Oakland 12, Calif. 

July 28, 1945. 
Mr. Frank Marshall, 
Rt. 1, Box 241, 
Walnut Creek, Calif. 

In accordance with Article 15, Sections 1, 2 & 3, 
and in accordance with Section 7 of the same Ar- 
ticle, of the Constitution of Warehouse Union, Local 
6, International Longshoremen's & Warehousemen's 
Union, you are hereby notified that charges are pre- 
ferred against you for the following violations of 
the Constitution and By-Laws of this organization: 

1. Violation of Declaration of Principles. 

2. Violation of Oath of Membership. 

3. Violation of Article 9, Section 1. 



848 Colgate-Palmolive-Pect Co. vs. 

You are hereby notified that in accordance with 
Section 14, of Article 15, the Executive Committee 
finds that there is good cause to believe the charges 
to be true, and you are, therefore, suspended as a 
member of this Local as of this date, losing all rights 
and privileges, pending a trial as provided for in 
Article 15 of the Constitution of Warehouse Union, 
Local 6, ILWU. 

/s/ PAUL HEIDE, 

Vice-President for the Gen- 
eral Executive Board. 
PH:ES 
owu-cio 

Registered — Return Receipt Requested. 



INTERVENER'S EXHIBIT No. 2 

Employees Welfare Ass'n. 

July 30th, 1945: (4:15 P.M.) Finnish Brotherhood 
Hall, 1970 Chestnut St., Berkeley, Calif. 
Wm. Sherman, President, 
E. H. Thompson, Rec. Sec. 

An address by Bro. Thompson stressing fact of 
past policy of present bargaining agents, I.L.W.U., 
and what our future course of action should be. 

Motion by Thompson that we withdraw from the 
C. L O. and International Longshoremen and Ware- 
housemen's Union District #1 Local 6. Form an 
Independent LTnion and seek affiliation with another 
International. Motion seconded. Vote carried unan- 
imously in favor 205 opposed None. 



N. L. R. B. et al 849 

Motion that we go back to work tomorrow morn- 
ing pending settlement of 5 Brothers Shop Stew- 
ards laid off by management at request of I.L.W.U. 
officials. If shop Steward don't work, nobody works. 
Carried unanimously. 

Motion is Ed Bopp be allowed to work only if he 
discontinue being I.L.W.U. Shop Steward. P. S.: 
Bopp appointed Shop Steward by I.L.W.U. offi- 
cials July 30th P.M. 

Motion to elect a two (2) member negotiating 
Committee. Nominated and seconded, were E. H. 
Thompson, Wm. Sherman, H. Lonnberg and Lincoln 
Olsen. An amendment to the motion that the 4 
members nominated to be elected amendment sec- 
onded. Amendment carried and motion carried 
unanimously. 

Motion to elect 2 trustees. Motion seconded. Bill 
Stolba, Carl Carlson, Ralph Hugel, Gleen Hixson 
and Chas. Scutti nominated. Sloba — 72 Carlson — 
19 Hiegel— 62, Hixson— 93, Scutti— 19. Hixson and 
Stolba elected. 

General discussion about getting 5 Shop Stewards 
back on the job. P. S. 5 Shop Stewards, H. Smith, 
Frank Marshall, Clyde Haynes, Sanford Moreau 
and Dave Luchsinger were by motion duly made 
and seconded which unanimously to hold office as 
Steward till elections are held. 

Official Report 
July 30th, 1945: Wm. Stolba, L. Olsen, Dave 
Luchsinger, Wm. Sherman, E. H. Thompson fol- 
lowing general meeting visited an attorney for legal 



850 Colgate-Palmolive-Peet Co. vs. 

reasons as to best way to complete severing rela- 
tions with I.L.W.U. 1-6. Telegrams were sent to 
I.L.W.U. 1-6. Oakland and San Francisco, Calif. 

Telegram was also sent to Bert Railey, Mgr., 
C.P.P. Co. ; 800 Carlton St., Berkeley, Calif. 

You are hereby notified of action taken by more 
than 200 employees of C.P.P. Co., all being former 
members of I.L.W.U. 1-6 and being more than 50% 
of total employees have withdrawn and severed re- 
lations with I.L.W.U. as collective bargaining agent. 

Adjournment. 

E. H. THOMPSON, 
Rec. Sec. 



INTERVENER'S EXHIBIT No. 3 
July 31st, 1945 (12:00) (Noon) 

The meeting was called to order by Bill Sher- 
man. 

The discussion started out with some of the things 
that took place this morning. July 31st at the plant. 

1. Mainly the rehiring of our shop steward. 

Suggestion carried that we choose one man from 
each department to be a source of information by 
phone for future action. 

1. Tom Azevedo — Sea Foam — Trin. 8618. 

Al Zullaci— Toilet Dept.— Thorn. 7041. 

Terry Anderson — Carpenter — Kellogg 42442 Sw 
8009. 

W. C. Howard — Pipe Shop. 



N. L. R. B. et al 851 

Henry Hellbawm— Boiler— La 5-0487. 

Discussion that took place, a vote was taken 
again to continue the meeting until shop Stewards 
all returned to work. One suggested that they be 
init to w^ork in the office. Railey opjjosed it as yet. 

Meeting continued till Aug. 2, 1945. 5:00 PM. 

New Employees representative on job. 

Martin Heppler — 

Manuel Allegre — 

Bob Ashworth 

Closed Meeting August 2, 1945. 5 :00 P.M. 

Motion was duly made and seconded to employ 
Harvey E. Howard, as Labor Consultant, and grant 
him the power to sign all necessary papers for the 
employees of Colgate-Palmolive-Peet Co. relative 
to Wages, Hours and conditions of employment. 
Motion carried unanimous. 

Motion was duly made and seconded that the Em- 
ployees Welfare Association of the Colgate-Palm- 
olive-Peet Co. be disbanded and affiliation and mem- 
bership in the International Chemical Workers 
LTnion, A.F.L., be applied for. Unanimously car- 
ried. 

Motion was made and seconded that L. Olsen be 
authorized to sign all necessary papers with Har- 
vey E. Howard. Unanimously carried. 

Motion was made and seconded that all employees 
return to work pending a National Labor Relations 
Board election. Motion carried. A collection was 



852 C olgate-Palmolive-P eet Co. vs. 

called for the help defray exi^enses and $87.50 was 
received. 

Adjournment. 

E. H. THOMPSON, 
Rec. Sec. 



INTERVENER'S EXHIBIT No. 4 

Warehouse Union — C.I.O. 

Local 6 

158 Grand Avenue, Oakland 12, Calif. 

Higate 5045 

-Mr. Hai'old Lonnberg 
1245 60th Ave. 

Oakland, Calif. July 31, 1945. 

In accordance with Article 15, Sections 1, 2 & 3, 
and in accordance with Section 7 of the same Ar- 
ticle, of the Constitution of Warehouse Union, Local 
6, International Longshoremen's & Warehousemen's 
Union, you are hereby notified that charges are pre- 
ferred against you for the following violations of 
the constitution and By-Laws of this organization: 

1. Violation of Declaration of Principles. 

2. Violation of Oath of Membership. 

3. Violation of Article 9, Section 1. 

You are hereby notified that in accordance with 
Section 14, of Article 15, the Executive Committee 
finds that there is good cause to believe the charges 
to be true, and you are, therefore, suspended as a 
member of this Local as of this date, losing all rights 
and privileges, pending a trial as provided for in 



N. L. R. B. et al 853 

Article 15 of the Constitution of Warehouse Union, 
Lor-al 6, ILWU. 

/s/ PAUL HEIDE, 

Vice-President for the Gen- 
eral Executive Board. 
PH:ES 
Owu-CIO 

Registered — Return Receipt Requested. 

Received Aug. 31, 1945. 



INTERVENER'S EXHIBIT No. 5 

Constitution, By-Laws and Rules of Order. Ware- 
house Union, Local 6, International Longshore- 
men and Warehousemen's Union. 

Declaration of Principles 

We, the warehouse men and women of San Fran- 
cisco and Bay Tributaries, in order to build and 
maintain a strong Union organization; provide for 
the defense of our common interests; promote the 
general welfare of our members and other wage 
earners and uphold the rights and dignity of our 
labor and its organized expression, have determined 
that we shall be guided by the following principles: 

1. An injury to one is an injury to all. 

2. All rights and duties belong, without discrim- 
ination, to each member of the organization as long 
as they comply with the rules of the organization. 

3. The right of each member to receive such a 



854 Colgate-PalmoUve-Peet Co. vs. 

fair and just return for his labor as will make pos- 
sible sufficient leisure for education and recreation, 

4. The right to be treated in a decent and re- 
spectful manner by the emx3loyer at all times. 

5. To use all possible safety measures in our 
work as not to injure brother and sister members; 
to promote good wdll among the wage earners in 
our industries, and to reduce the great hazards of 
our occupation. 

6. To regulate our conduct, both as a union mem- 
ber and as individuals, so as to raise the living 
standards of those employed in our industry and 
make our occupation w^hat it should be, an honest 
and secure means of earning a decent livelihood, 
protection against accident, sickness and old age. 

7. To assist other unions whenever possible in 
their resistance to attacks on their wages and work- 
ing conditions and for the attainment of their de- 
mands. 

8. Basing ourselves upon these principles, we are 
determined to do everything within our power, col- 
lectively and individually, and as an important sec- 
tor of the organized labor movement, to promote 
the best interests of our members, and other wage 
earners when this becomes necessary, believing as 
we do that the solidarity of the labor movement is 
the only way to preserve and improve the living 
standards of wage earners. 

9. We pledge ourselves to labor united and for 
the principles set forth herein to perpetuate our 
Union and to work concertedly with the general la- 
bor movement to bring about the highest standard 



N. L. R. B. et al 855 

of living to all workers and liave adopted the fol- 
lowing Constitution, By-Laws and Rules to aid us 
in abiding by these principles. 



Article IX 

Membership Duties 

Section 1. The first duty of each member is to be 
a true and loyal member of this Local ; to foster and 
advance all objectives beneficial to the cause of la- 
bor ; to purchase only union-made goods, and not to 
patronize any place where unfair labor is employed. 

* * * 

Obligation 

I do most solemnly on my honor affirm that dur- 
ing my association with the Warehouse Union, Lo- 
cal 6, I will remain a true and faithful member, 
observe its law^s, and labor as far as lies within 
my power to further the advancement of my trade 
so that my fellowmen can receive and enjoy with 
me the just fruits of our labor; that I will attend 
the meetings of this Union as often as it is possible 
for me to do so; that I will not reveal, unless by 
permission, any of the workings that may at any 
time be confided in me ; and I do further promise to 
assist a member of the Warehouse Union, Local 6, 
when and wherever I may find him or her in dis- 
tress; that I will never knowingly conmiit an act 
injurious to the interests of him or her, but will 
help to preserve the rights of his or her household 



856 Colgate-Pahnolive-Peet Co. vs. 

inviolate; and finally I will strive to create a fra- 
ternal feeling between our Union and organizations 
who mean to uphold the dignity of labor, and affirm 
the nobility of all who earn their bread by the sweat 
of their brow; that I will not deal in any manner 
with any person who is an enemy of labor. To this 
I pledge my honor. 



INTERVENER'S EXHIBIT No. 6 

Before 

Warehouse Union, Local 6 

International Longshoremen's & Warehousemen's 

Union 

In the Matter of 

WAREHOUSE UNION, LOCAL 6, INTER- 
NATIONAL LONGSHOREMEN'S & WARE- 
HOUSEMEN'S UNION, CIO, 

Plaintiff, 

vs. 

CLYDE W. HAYNES, DAVE LUCHSINGER, 
FRANK MARSHALL, SANFORD MOREAU, 
HARRY A. SMITH, H. LONNBERG, LIN- 
COLN OLSEN, ED THOMPSON and WIL- 
LIAM SHERMAN, 

Defendants. 

DECISION OF TRIAL COMMITTEE 

The members of this Trial Committee were 
chosen by drawing lots at a regular meeting of the 



N. L. R. B. et al 857 

Union, as provided in Article XV, Section 6, of the 
Constitution of Warehouse Union, Local No. 6 
(ILWU). Brother Nelson Wilson was chosen as 
Chairman. 

None of the members of this Trial Committee 
knew anything personally about this case before 
the trial or has an axe to grind. We are a rank 
and file committee and we have tried to decide this 
case fairly on the evidence presented at the trial 
and nothing else. Everything we say here is the 
unanimous opinion of all of us. 

The trial was held in the Green Room at 158 
Grand Avenue, Oakland, California, on October 3, 
1945. The four signers of this decision. Brothers 
Nelson Wilson, Claude Larrabee, Frank Carabello 
and Johnny Wilson, showed up at the trial, but 
Brother Manuel Farias was unable to attend. Paul 
Heide was prosecutor. 

Brother Heide put in the record an affidavit 
showing that the charges had been sent by regis- 
tered mail to all the nine defendants, 

Clyde W. Haynes H. Lonnberg 

Dave Luchsinger Lincoln Olsen 

Frank Marshall Ed Thompson 

Sanford Moreau William Sherman 
Harry A. Smith 

He also put in the record return receipts from the 
post office showing that all these defendants had 
gotten the charges, except William Sherman, and 
his letter was returned by the post office showing 
he refused to accept it. LTnder Section 7 of Article 



858 Colgate-PalmoUve-Peet Co. vs. 

XV all that is necessary is that the charges must be 
mailed by registered mail, and it does not prevent 
the trial if the defendant refuses to accept the 
charges. 

None of the defendants showed up at the trial. 
This brings up Section 11 of Article XV which 
says that if the accused fails to appear for trial 
without an excuse which satisfies the Trial Com- 
mittee, such failure to appear may be considered by 
the Committee as conclusive proof of guilt. Two 
of the defendants, Prank Marshall and Harry A. 
Smith, wrote in at the last minute claiming to be 
sick, but they didn't show any doctor's certificate 
or anything except their own statement. The Com- 
mittee gave a lot of thought to this matter and 
decided that the excuses were not good ones and 
were made just for delay. 

The charges were then read and the Chairman 
asked for pleas of guilty or not guilty. Naturally 
since the defendants didn't show up, no pleas were 
made. However, we decided that we were not go- 
ing to rely on Section 11 and insisted on hearing the 
evidence in the case. 

The charges against Brothers Haynes, Luch- 
singer, JMarshall, Moreau and Smith, the shop stew- 
ards at Colgate-Palmolive-Peet, are as follows: 

We, the undersigned, members of Ware- 
house Union, Local 6, I.L.W.U., hereby bring 
charges against the following members of the 
Union for violations of the Constitution of 
Warehouse Union, Local 6, I.L.W.U., and 



N. L. R. B. et at 859 

specifically for violating the Oath of Ohliga- 
tion, the Preamble, the Declaration of Prin- 
ciples, and the i^rovisions of Article 9, "Mem- 
bershii3 Duties," of the Constitution: 

Clyde W. Haynes 0-1280 

Dave Luchsinger 0-1152 

Frank Marshall 0- 757 

Sanford Moreau 0-1921 

Harry A. Smith 0- 790 

We also charge the above-named members 
with the following specifi<^ violations of our 
Constitution and our Union policies, as adopted 
by majority vote of the membership: 

1. Attaching and violating the no-discrimi- 
nation policy of the I.L.W.U. 

2. Using their positions as Stewards to 
spread false and misleading information among 
the membership concerning the policy and pro- 
gram of the Union, the activities and position 
of the Union officers, the status of the Union 
treasury and the status of the contract between 
the Union and Colgate-Palmolive-Peet Com- 
pany. 

3. Encouraging non-payment of dues and 
non-attendance at Union meetings by members 
whom they were responsible to check and keep 
in good standing. 

4. Failure and refusal to honestly repre- 
sent the grievances of members employed by 
the Company. 

5. Refusal to post all bulletins and official 



860 Colgate-PalmoUvc-Peet Co. vs. 

notices submitted to them by the Union officers 
in conformity with regular Union procedure 
and with actions taken by the Union member- 
ship. 

6. Conspiring with enemies of the I.L.W.U. 
and of the labor movement to destroy the 
Union. 

Louis Gonick 0-2343 Jim Nelson 0-2192 

Name Book # Name Book # 

Charles Duarte 0- 817 Joe Gomes 0-1581 

Name Book # Name Book # 

George Canete 0- 140 Charles Murray 132 

Name Book # Name Book # 

Lauro Cortez 0-2253 David A. Wilson 0-2276 

Name Book # Name Book # 

The charges against Brothers Lonnberg, Olsen, 
Thompson and Sherman are as follows: 

We, the undersigned, members of Warehouse 
Union, Local 6, I.L.W.U., hereby bring charges 
against the following members of the Union 
for violations of the Constitution of Warehouse 
Union, Local 6, I.L.W.U., and specifically for 
violating the Oath of Obligation, the Preamble, 
the Declaration of Principles, and the provi- 
sions of Article 9, "Membership Duties," of 
the Constitution: 

H. Lonnberg 0-1900 

Lincoln Olsen 0-1941 

Ed Thompson 0-1982 

William Sherman 0- 788 



N. L. R. B. et al 861 

We also cliaigc the aLv^ve-naiiied. niembei's of 
the Union with the following specific violations 
of our Constitution and our Union policies, as 
adopted by majority vote of the membership: 

1. Attacking and violating the no-discrimi- 
nation policy of the I.L.W.U. 

2. Deliberately spreading false and mis- 
leading information among the Union member- 
ship concerning the policies and program of 
the I.L.W.U., the activities and the position of 
the Union Officers, the status of the Union 
treasury and the status of the contract between 
the Union and Colgate-Palmolive-Peet Com- 
pany. 

3. Conspiring with enemies of the labor 
movement to weaken and destroy the I.L.W.U. 

4. Leading a movement for non-payment of 
dues and non-attendance at Union meetings 
among the membership at Colgate-Palmolive- 
Peet Company. 

5. Making libelous and defamatory state- 
ments concerning other members of the Union. 

6. Promoting and leading a strike at the 
Colgate-Palmolive-Peet Company in open vio- 
lation of the Union's no-strike pledge. 
Louis Gonick 0-2343 Jim Nelson 0-2192 

Name Book j± Name Book # 

Charles Duarte 0- 817 Joe Gomes 0-1581 

Name Book # Name Book # 

George Canete 0- 140 Charles Murray 0- 132 

Name Book # Name Book # 

Lauro Cortez 0-2253 David A. Wilson 0-2276 

Name Book # Name Book # 



862 Colgate-Palmolive-Peet Co. vs. 

We will take up first the charges against former 
Shop Stewards Haynes, Luchsinger, Marshall, 
Moreau and Smith. The testimony showed that 
these men have been working against the established 
policies of the union for a long time. For example, 
the Union's policies against discrimination on ac- 
count of race or color. Back in the early part of 
1944 Marshall refused to take up the beef of a 
Negro member at Peet's named Harrison because 
he "didn't like him." The other stewards backed 
him up on this and all of them were taken before 
the Grievan<3e Committee and found guilty of con- 
duct unbecoming stewards and given a reprimand 
for their treatment of this Negro brother. Then 
there was the Ulysses Norman case, where a union 
member at Peet's said out loud in the dressing room 
that there are too many Negroes in the Union, the 
quicker we get them out the better (only he didn't 
say "Negro.") Brother Norman, who is a Negro, 
filed charges against the brother who made this 
statement. Defendants Marshall and Sherman pub- 
licly defended the right of this member to make 
such attacks on Negro fellow members. The posi- 
tion of the ILWU against spreading race hatred 
and prejudice is well known and has brought much 
praise to the organization. We believe that de- 
fendants Marshall and Sherman were working 
against the best interests of the Union by taking 
this position and were violating the principles of 
the Union and their oath of membership. 

There was a lot of evidence showing that all of 
the stewards fell way down on the job when it came 



iV. L. B. B. et at 863 

to carrying out the duties of tlieir office. For in- 
stance, they refused to put Section 10 of the Peets 
contract into effect, which called for setting up 
stewards for each department. They refused to 
select a Chief Steward as required by the contract. 
They showed poor judgment in regard to what 
grievances to present to the management. They 
pushed many phony grievances. They failed to 
attend meetings of the Executive Council, which 
was their duty as stewards, and also membership 
meetings. This was a poor example for rank and 
file members, in regard to attending union meet- 
ings. It all mounts up in our opinion to sabotage 
of the steward's job. 

The Union's political action program took a bad 
beating from the stewards. For instance they re- 
fused to carry out the mandate of the union mem- 
bership in regard to financial support for the Na- 
tional Citizens Political Action Committee. They 
sabotaged collection of funds for the defense of 
Harry Bridges, President of the ILWU. They 
opposed the program for wiping out the Little Steel 
formula. They bucked the Union's program in 
regard to enforcing OPA regulations. 

Toward the end of May, 1945, they even refused 
to call a meeting of the employees at Peet's to dis- 
cuss current contract negotiations, air the griev- 
ances of the rank and file and elect stewards for the 
coming year. Brother Lou Gonick, Business Agent, 
demanded three separate times that they arrange 
to call such a meeting, but the stewards kept putting 
him off with phony excuses, and after they finally 



864 Colgate-Palmolive-Peet Co. vs. 

agreed to call a meeting they broke their promise, 
claimed they forgot all about calling the meeting. 
Marshall, Smith and Haynes were the ringleaders 
but all five of them played this game. Finally 
Brother Gonick went ahead and made his own ar- 
rangements for the meeting and gave the stewards 
notices of the meeting to post, but they refused to 
post them. This was bound to hurt the Union in the 
eyes of the employees. It prevented the Union's 
officers from contacting the membership at Peet's 
and giving them a first-hand account of their activi- 
ties, especially the current contract negotiations. 
We believe the stewards were clearly guilty of work- 
ing against the best interests of the Union and its 
members. 

The Trial Committee gave a lot of thought to the 
evidence in this case and we are unanimously to the 
effect that these defendants, Haynes, Luchsinger, 
Marshall, Moreau and Smith are guilty of the 
charges. It is too bad that they didn't show up 
themselves because we would have liked to hear 
their side of the story. But they had a fair chance 
to appear and they didn't take it, and so we have 
got to make our decision on the evidence in the 
record, and on that evidence we have got to find 
them guilty. 

On the question of punishment, as provided in 
Article XV, Section 9, of the Constitution. We 
think these men have betrayed their trust as offi- 
cers of this Union and have shown themselves to 
be unfit for further membership in our organiza- 
tion. Therefore we unanimously recommend that 



N. L. R. B. et al 865 

Clyde W. Haynes. Dave LiK'hsinger, Frank Mar- 
shall, Sanford Moreau and Harry A. Smith be 
expelled from this Union. 

In regard to the second set of charges, against 
Lonnberg, Olsen, Thompson and Sherman, the evi- 
dence showed that these four men were responsible 
for pulling the only wartime strike that members 
of this Local ever were guilty of. Our Union has 
a right to be proud of its record in regard to the 
wartime no-strike pledge, which was 100% except 
for what happened at Peet's. Their leadership in 
the strike at Peet's on August 1, 2 and 3, 1945, was 
responsible for stopping production of thousands 
of gallons of glycerine, a vital war material needed 
by our armed forces in the field. This is very seri- 
ous, because nothing could give the Union and the 
labor movement more of a black eye, when our 
nation was fighting for its life against its enemies. 

On top of this, the evidence shows that three of 
these men, Sherman, Thompson and Lonnberg, made 
libelous and defamatory charges against Paul Heide 
and other officials of the Union, such as being rack- 
eteers, looting the Union's treasury and so forth. 
The payoff is that none of these men ever brought 
charges against Heide or any other Union officer 
under the Constitution, although under Article XV, 
Section 1, they were duty-bound to do this. Or 
even made any charge of misconduct on the floor, 
at a union meeting, although they had plenty of 
opportunity to do this. We disapprove very 
strongly of such wild and irresponsible conduct. 

One thing we want to make very clear. We do 



866 Colgate-Palmolive-Peet Co. vs. 

not hold it against these men, or any of the other 
defendants, that they apparently joined the A F of 
L Chemical Workers Union. If they thought the 
men could get a better deal through the A F of L, 
that was their right under the Wagner Act, as we 
understand it, just as A F of L members have the 
right to change to the CIO if they want to. After 
all, that is a question for the rank and file to de- 
cide. Undermining union policies is something 
else. Policies such as political action, equal rights 
for all races and colors, and the wartime no-strike 
pledge are fundamental to the \velfare of the Union 
and its members. The union cannot and should not 
tolerate such conduct. 

We declare that defendants H. Lonnberg, Lin- 
coln Olsen, Ed Thompson and William Sherman 
are guilty of the charges. We recommend that they 
lose all rights as union members and be exioelled 
from this organization. 

October 10, 1945. 

/s/ CLAUDE M. LARRABEE, 
/s/ JOHNNY WILSON, 
/s/ NELSON WILSON, 
/s/ FRANK CARABALLO. 



iV. L. R. B. et al 867 

INTERVEXER'S EXHIBIT No. 7 

Before: Warehouse Union, Local 6, International 
Longshoremen's & Warehousemen's Union 

In the Matter of 

WAREHOUSE UNION, Local 6, INTERNA- 
TIONAL LONGSHOREMEN'S & WARE- 
HOUSEMEN'S UNION, Cio, 

Plaintiff, 

vs. 

]\ijANUEL ALEORE, TERRY ANDERSON, 
ROBERT ASHWORTH, TONNY AZEVEDO, 
VINCENT BARBONI, ANN CERRATO, 
FELIX DENKOWSKI, HENRY GIANNA- 
RELLI, HENRY HELLBAUM, MARTIN 
HEPPLER, GLEN HIXON, WILLIAM 
HOWARD, ALDEN LEE, MANUEL MU- 
NOZ, KAY NORRIS, INA PAIGE, K. PE- 
RIERA, JOHN PERUCCA, MIKE RAMIE- 
REZ, CALIXTO RIGO, OPHELIA REYES, 
F. L. RICHMOND, ROSE ROS, MAN- 
UEL SOUZA, NICK TATE, GENEVIEVE 
YOUNG, ALBERT ZULAICA, 

Defendants. 

DECISION OF TRIAL COMMITTEE 

We, the members of the Trial Committee, being 
Brother P. Lind, Chairman; Brother M. Pavalini, 
Brother Joe Quartarola, Brother J. Silva, and 



868 Colgate-Palmolive-Peet Co. vs. 

Brother M. Preitas, have met together and reached 
our decision in the case of the members at Colgate- 
Palmolive-Peets who went on strike. 

The charges filed against defendants Nick Tate, 
Robert Ashworth, Manuel Munoz, Tommy Azevedo, 
Calixto Rigo and Henry Hellbaum were as follows : 

We, the undersigned members of Warehouse 
Union, Local 6, ILWU, hereby bring charges 
against the following members of the Union for 
violation of the Constitution of Warehouse Un- 
ion, Local 6, ILWL^, and specifically for violat- 
ing the declaration of principles, oath of mem- 
bership, and Article 9, Section 1: 

Nick Tate Tommy Azevedo 

Robert Ashworth Calixto Rigo 

Manuel Munoz Henry Hellbaum 

We also charge the above named members of 
the Union v/ith the following specific violations 
of our Constitution and our Union policies as 
adopted by majority vote of the membership: 

1. Deliberately spreading false and misleading 
information among the Union membership 
concerning the policies and program of the 
ILWU, the activities and position of the 
Union officers, the status of the Union treas- 
ury and the status of the contract between 
the Union and Colgate, Palmolive, Peet 
Company. 

2. Conspiring with enemies of the labor move- 
ment to weaken and destroy the ILWU. 



N. L. E. B. et al 869 

3. Leading a movement for non-payment of 
dues and non-attendance at Union meetings 
among the membership at Colgate-Palm- 
olive-Peet Company. 

4. Making libelous and defamatory statements 
concerning the other members of the Union. 

5. Promoting and leading a strike at the Col- 
gate-Palmolive-Peet Company in open vio- 
lation of the Union's no-strike pledge. 

6. Persisting, although warned many times to 
discontinue, in their disruptive and agita- 

' tional activities which is hampering produc- 
tion and peaceful work of the vast major- 
ity of our members at Colgate-Palmolive- 
Peet Company. 

Dated : August 9, 1945. 

CHARLES DUARTE, 

Book # 0-817. 
LOUIS GONICK, 
Book # 0-2343. 

The charges filed against the rest of the defend- 
ants were as follows: 

We, the undersigned members of Warehouse 
Union, Local 6, ILWU, hereby bring charges 
against the following members of the Union 
for violation of the Constitution of Warehouse 
Union, Local 6, ILWU, and specifically for vio- 
lating the declaration of principles, oath of 
membership, and Article 9, Section 1 : 



870 Colgate-Palmolive-Peet Co. vs. 

Rose Ross Martin Heppler 

Esther Young Bill Howard 

Ina M. Paige Alex Hixon 

Ophelia Reyes Alden Lee 

Kay Norris Al Barboni 

Ann Cerrato Felix Denkowski 
Henry Giannarelli ¥. L. Richmond 

Albert Zulaica Terry Anderson 

Manuel Souza K. Periera 

Manuel Alegre John Perucca 
Mike Ramirez 

Dated: August 9, 1945. 

CHARLES DUARTE, 

Book # 0-817. 
LOUIS GONICK, 
Book # 0-2343. 

Registered letters setting forth the charges were 
sent to all the defendants. Also, all the defendants 
were given bills of particulars. 

The trial was held on December 17, 1945, at 8 
o'clock P.M. in the Green Room at 158 Grand Ave- 
nue, Oakland, and all of the defendants were there. 
Brother Lind, Chairman, was in charge. After 
the charges were read, all of the defendants said 
that they pleaded Not Guilty. A statement was then 
read for the defendants by Kay Norris, raising sev- 
eral legal points. We have considered these points 
and do not agree with them. For example, in regard 
to the statement that the defendants did not get a 
popy of the charges, each of them received a letter 
from the Union stating the charges exactly. Fur- 



N. L. R. B. et at 871 

thermore, each one received a bill of particulars 
stating that the only issue was in regard to foment- 
ing or participating in an unauthorized strike in 
wartime, in violation of the ILWU's no-strike 
pledge. All the defendants knew what they were 
charged witli and had a chance to defend them- 
selves. 

After the statement was read by Kay Norris, the 
following defendants walked out of the trial: 

Manuel Alegre Kay Norris 

Terry Anderson Mike Ramierez 

Henry Giannarelli Ophelia Reyes 

Henry Hellbaum F. L. Richmond 

William Howard Genevieve Young- 

The rest of the defendants stayed on and were given 
opportunity to put on a defense. 

The evidence showed that on August 1, 2 and 3, 
1945, while the United States was at war with Ja- 
pan, an unauthorized strike was pulled at Colgate- 
Palmolive-Peet plant in Berkeley, where I^ocal 6 
is the bargaining agent. This was in violation of 
the solemn pledge made by our Union many times 
during the recent war not to strike until the de- 
feat of our enemies. For example, as late' as July 
13, 1945, the Union went on record: 

"That we reaffirm our wartime No-Strike 
pledge. The war in the Pacific comes first. The 
fighting men must receive their weapons and 
supplies without stint, without interruption or 
delays of any kind." 



872 CoIgafe-PahnoUve-Peet Co. vs. 

When President Truman ca.me into office the Exe- 
cutive Board adopted the following pledge, which 
the membership of Local 6 confirmed: 

"On behalf of the entire membership of the 
International Longshoremen's & AVarehouse- 
men's L^nion, we renew and give to President 
Harry S. Truman and the Nation our solemn 
pledge that until the war is ended with the un- 
conditional surrender of Japan we will not 
strike, stop worlv, or cease or slow production 
for any reason whatsoever. 

"We reiterate that this is an unconditional 
pledge, given in the knowledge that our first 
duty is to our Nation and that, despite provo- 
cation, we nuist take no action that will imperil 
our Nation or cause the prolongation of the 
war or cause the unnecessary loss of so much 
as one Allied life. 

"We further make the i^ositive pledge that 
we will do everything in our power to shorten 
the war hy lending ourselves to intelligent so- 
lution of the manifold manpower problems and 
to the development of all possible means to 
speed production.". 

The Trial Committee wishes to point out that 
the ILWU had a 100% record in regard to uphold- 
ing this pledge. We all know there was plenty of 
provocation for strikes during the war, but the 
members of this Union knew that the boys on Iwo 
Jima, Tarawa and Kwajelein had a lot of provoca- 
tion, too. The only black mark on the L^nion's 100% 



N. L. R. B. et at 873 

aS^o-Strike record during the war was the wildcat 
stoppage at Peets. This lasted about tw^o and a half 
days and held up production of glycerine for the 
armed forces, a vital war material. 

The evidence showed that each of the defend- 
ants took part in this unauthorized wartime strike 
except Eigo and Alegre, and the evidence showed 
that these two were guilty of fomenting and en- 
couraging the strike. As a matter of fact, the de- 
fendants who stayed on at the trial later admitted 
that they were guilty of participating in the strike. 
We find that the following defendants are guilty of 
participating in an unauthorized strike in wartime, 
contrary to the ILWU's no-strike pledge: 

Terry Anderson Kay Norris 

Robert Ashworth Ina Paige 

Tommy Azevedo K. Periera 

Vincent Barboni Jolm Perucca 

Ann Cerrato Mike Ramierez 

Felix Denkow^ski Ophelia Reyes 

Henry Giannarelli F. L. Richmond 

Henry Hellbaum Rose Ros 

Martin Heppler Manuel Souza 

Glen Hixon Mck Tate 

William Howard Genevieve Young 

Alden Lee Albert Zulaica 
Manuel Munoz 

We find that the following defendants are guilty 
of fomenting and encouraging an unauthoiized 
strike in wartime, contrary to the ILWU's no- 
strike pledge: 

Manuel Alegre Calixto Rigo 



874: Colgate-Palmolive-Peet Co. vs. 

Some of tlie defendants raised the point tliat a 
couple hundred people walked out at Peets and yet 
only 36 were brought up on charges. The answer is 
that as a Trial Committee we have the right to try 
only the people who are charged. We have not got 
the right to try anybody who is not charged. When 
somebody is charged, it is the duty of the Trial 
Committee to decide whether they are guilty or in- 
nocent, not to decide whether somebody else is guilty 
or innocent. The Constitution sets up a perfectly 
good way of bringing charges against members of 
this Union and if anybody wants to find out whether 
the other two hundred members at Peets are guilty 
of violating the no-strike pledge, let them file 
charges under the Constitution and bring them to 
trial. The fact that a lot of other people may be 
guilty does not excuse these defendants. They are 
all over 21 and resiJonsible for their actions. 

The next question is what should the punishment 
be. In regard to the ten defendants who walked 
out and refused to stand trial, they have disgraced 
the good name of the ILWU and yet their conduct 
shows that they do not repent of their actions. 
They are not entitled to any consideration from 
this organization. We therefore recommend that the 
following defendants be expelled from the Union 
and deprived of all their rights and privileges as 
Union members: 

Manuel Alegre Kay Norris 

Terry Anderson Mike Eamierez 

Henry Giannarelli Ophelia Reyes 

Henry Hellbaum F. L. Richmond 

William Howard Genevieve Young 



N, L. R. B. et al 875 

In regard to the other 17 defendants, the fact 
that they were willing to stand trial before their 
fellow members and answer for their actions is a 
point in their favor. They were honest enough to 
admit their guilt and asked for lenient treatment 
from this body. Therefore we make the following 
recommendation for punishment of: 

Robert Ashwoi'th Ina Paige 

Tonny Azevedo K. Periera 

Vincent Barboni John Perucca 

Ann Cerrato Calixto Rigo 

Felix Denkowski Rose Ros 

Martin Heppler Manuel Souza 

Glen Hixon Nick Tate 

Alden Lee Albert Zulaica 
Manuel Munoz 

1. They shall be permanently deprived of their 
present seniority at Peet's. 

2. They shall be put on probation for one year 
from date, during which time they shall not hold 
office or trust in the local. At the end of the year 
the Grievance Committee shall consider their case, 
and if it finds that they have conducted themselves 
as good Union members, they shall be restored to 
all the rights and privileges of members of the 
Union in good standing. 



876 C olgate-Palmolive-Peet Co. vs. 

3. During the period of probation, they shall 
have the right to work out of the hiring hall and to 
be employed in Union houses on the same basis as 
other members of the local, without discrimination. 

Dated: December 24, 1945. 

PAUL N. LIND, 

Chairman. 
MANUEL FREITAS, 
MARIO J. PAVLINA, 
JULIUS R. SILVA, 
JOSEPH QUARTAROLO. 



N. L. E. B. et al 877 

INTERVENER'S EXHIBIT No. 8 

Before : Warehouse Union, Local 6, International 
Longshoremen's & Warehousemen's Union. 
In the Matter of : 

WAREHOUSE UNION, LOCAL 6, INTERNA- 
TIONAL LONGSHOREMEN'S & WARE- 
HOUSEMEN'S UNION, CIO, 

Plaintiff, 
vs. 

CLYDE W. HAYNES, DAVE LUCHSINGER, 
FRANK MARSHALL, SANFORD MO- 
REAU, HARRY A. SMITH, H. LONNBERG, 
LINCOLN OLSEN, ED THOMPSON and 
WILLIAM SHERMAN, 

Defendants. 

Board Room, Warehouse Union, Local 6 
158 Grand Avenue, Oakland, California 

October 3, 1945. 2:30 P.M. 

Before Trial Board: 
Nelson Wilson, Chairman. 
Claude Larrabee 
Frank Caraballo 
Johnny Wilson 

Appearances : On Behalf of the Plaintiff : 
Paul Heide, Vice President, Warehouse Union, 
Local 6, 158 Grand Avenue, Oakland, California. 

Present: Emma Stanley, Office Secretary, Ware- 
house Union, Local 6, I.L.W.U., CIO. 



878 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 
Proceedings Before Warehouse Union — (Con't) 

PROCEEDINGS 

Chairman Wilson: I will now call this meeting 
to order. May I have two Sergeants at Arms, 
please ? 

(Whereupon, two members of Local 6 vol- 
unteered as Sergeants at Arms.) 

Chairman Wilson : Who is the Prosecutor ? 

Mr. Heide: I am, Mr. Chairman. 

(To the Reporter) : Do you want to take my 
name? Paul Heide, Vice President of the Ware- 
house Union, Local 6, ILWU. 

Chairman Wilson: Brother Larrabee will now 
read the names of the Defendants. 

Mr. Larrabee : The first name is H. Lonnberg. 
Is Brother Lonnberg present? (No response) 

Lincoln Olsen? (No response) 

Ed Thompson? (No response) 

William Sherman? (No response) 

Clyde Haynes? (No response) 

Dave Luchsinger? (No response) 

Frank Marshall? (No response) 

Sanford Moreau? (No response) 

Harry A. Smith? (No response) 

Chairman Wilson: Are any of you present? (No 
response) 

Mr. Prosecutor, proceed with your case. 

Mr. Heide: I think, Mr. Chairman, that the 
next order in the trial is the reading of the charges. 



N. L. E. B. et al 879 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

The fact that the Defendants are not present here 
does not prevent the Trial Committee from proceed- 
ing with the triaL They have all been duly notified, 
and evidence will be introduced to show that they 
have been so notified, in accordance with the Consti- 
tution of the Union. 

Mr. Larrabee: Do you want me to read the six 
charges ? 

Mr. Heide : Mr. Chairman % 

Chairman Wilson: Yes. 

Mr. Heide: Does the Trial Committee have a 
copy of the charges that have been filed against the 
Defendants in this case? 

Chairman Wilson: Yes, they have. 

Mr. Larrabee: We have a copy here (indicating 
document). 

Mr. Heide : I think it is proper that the charges 
be read at this time. 

Chairman Wilson: Will you read the charges, 
Mr. Larrabee'? 

Mr. Larrabee: I will read the charges. 

''We, the undersigned, members of Ware- 
house Union, Local 6, I.L.W.U., hereby bring 
charges against the following members of the 
Union for violations of the Constitution of 
Warehouse Union, Local 6, I.L.W.U., and spe- 
cifically for violating the Oath of Obligation, 
the Preamble, the Declaration of Principles, 



880 CoJgate-PalmoIive-Pcct Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Vv^areliouse Union — (Con't) 

and the provisions of Article 9, 'Membership 
Duties,' of the Constitution: 

' ' Clyde W. Haynes 0-1280 

""Dave Luchsinger 0-1152 

''Frank Marshall 0-757 

"Sanford Moreau 0-1921 

"Harry A. Smith 0-790 

■"We also charge the above-named members 
of the Union with the following specific viola- 
tions of our Constitution and our Union poli- 
cies, as adopted by majority vote of the member- 
ship: 

"1. Attacking and violating the no-discrimi- 
nation policy of the I.L.WXT. 

"2. Using their positions as Stewards to 
spread false and misleading information among 
the membership concerning the policies and pro- 
gram of the Union, the activities and position 
of the Union officers, the status of the Union 
treasury and the status of the contract between 
the Union and Colgate-Palmolive-Peet Company. 

"3. Encouraging non-payment of dues and 
non-attendance at Union meetings by members 
whom they were responsible to check and keep 
in good standing. 

"4. Failure and refusal to honestly rep- 
resent the grievances of members employed by 
the Company. 

"5. Refusal to post bulletins and official no- 
tices submitted to them by the Union officers 



N. L. R. B. et al 881 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

in conformity with regular Union procedure 
and with actions taken by the Union member- 
ship. 

"6. Conspiring with enemies of the 
I.L.W.U. and of the labor movement to de- 
stroy the Union." 

Mr. Grube: Brother Heide, I move at this time 
that the Secretary read off the charges. I think we 
will get a clearer understanding of the procedure. 

Mr. Larrabee: Will you read this off'? (Indicat- 
ing document) 

Chairman Wilson: Is there any objection? 

Mr. Grube: It is simply to be read, and no ac- 
tion to be put at this time. 

Miss Stanley : You don 't want me to re-read this 
first one, do you? 

Mr. Grube: No. I think we have a fair under- 
standing of that. 

Miss Stanley (To the Reporter) : My name is 
Emma Stanley. I am the Office Secretary. 

"We, the undersigned, members of Ware- 
house Union, Local 6, I.L.W.U., hereby bring 
charges against the following members of the 
Union for violations of the Constitution of 
Warehouse Union, Local 6, I.L.W.U., and spe- 
cifically for violating the Oath of Obligation, 
the Preamble, the Declaration of Principles, 



882 CoIgate-PahnoUvc-Pcct Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 

Before Warehouse Union — (Con't) 

and the provisions of Article 9, 'Membership 
Duties,' of the Constitution: 
"H. Lonnberg 0-1900 
"Lincohi Olsen 0-1941 
'^Ed Thompson 0-1982 
"William Sherman 0-788 

"We also charge the above named members 
of the Union with the following specific viola- 
tions of our Constitution and our Union poli- 
cies, as adopted by majority vote of the mem- 
bership : 

"1. Attacking and violating the no-discrimi- 
nation policy of the I.L.W.U. 

"2. Deliberately spreading false and mis- 
leading information among the Union member- 
ship concerning the policies and program of 
the I.L.W.U., the activities and the position 
of the Union officers, the status of the Union 
treasury and the status of the contract between 
the Union and Colgate, Palmolive-Peet Com- 
pany. 

"3. Conspiring with enemies of the labor 
movement to weaken and destroy the I.L.W.U. 

""4. Leading a movement for non-payment 
of dues and non-attendance at Union meet- 
ings among the membership at Colgate, Palm- 
olive-Peet Company. 

"5. Making libelous and defamatory state- 
ments concerning other members of the Union. 
6. Promoting and leading a strike at the 



a, 



N. L. B. B. et aJ 883 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

Colgate, Palmolive-Peet Company in open vio- 
lation of the Union's no-strike pledge." 

These charges have been signed by Louis Gon- 
ick, Charles Duarte, George Canete, Lauro Cortez, 
Jim Nelson, Joe Gomes, Charles Murray and Da- 
vid A. Wilson. 

Chairman Wilson : Mr. Prosecutor, will you pro- 
ceed with your case? 

Mr. Heide: Mr. Chairman, I think it would be 
proper at this time for the Chair to ask if any of 
the Defendants are present, that they submit their 
plea at this time, whether guilty or not guilty, and 
then I will proceed. 

Chairman Wilson: Are any of the Defendants 
present? (No response) 

It seems as if not any of them are present. 

Mr. Heide: Mr. Chairman, in connection with 
the Defendants' failure to appear, I would like to 
point out that Section 11 of Article 15 of the Con- 
stitution of Warehouse Union, Local 6 provides as 
follows : 

"If the accused fails to appear for trial with- 
out an excuse which satisfies the Trial Com- 
mittee, such failure to appear may be consid- 
ered by the Committee as conclusive proof of 
suilt." 



t> 



Mr. Chairman, I would now like to submit Ex- 
hibit No. 1 for the prosecution, which is the original 
signed copy of the charges against Clyde AV. Haynes, 



884 C olgate-Palmolive-P eet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

Dave Luchsinger, Frank Marshall, Sanford Moreau 
and Harry Smith, and submit as Prosecution's Ex- 
hibit No. 2 the signed copy of the charges, which 
have already been read, against H. Lonnberg, 
Lincoln Olsen, Ed Thompson and William Sherman. 
I offer as Prosecution's Exhibit No. 3 an affidavit 
showing that notices of this trial and copies of the 
charges were served on all of the Defendants. 
Exhibit No. 3 reads as follows : 
"State of California, 
County of Alameda — ss. 

"Eimna Stanley, being tirst duly sworn, de- 
poses and says: 

"I am a person over the age of twenty-one 
years and am an employee of Warehouse Union, 
Local 6, I.L.W.U. On September 20, 1945, I 
served upon Clyde W. Haynes, Dave Luch- 
singer, Frank Marshall, Sanford Moreau, and 
Harry A. Smith, H. Lonnberg, Lincoln Olsen, 
Ed Thompson and William Sherman, and each 
of them, by sendmg to each of these said per- 
sons by registered mail, postage fully prepaid, 
the original of the letters annexed hereto and 
hereby made a part hereof, addressed to each 
of such persons, respectively, at the respective 
addresses stated therein. The letters to Clyde 
W. Haynes, Dave Luchsinger, Frank Marshall, 
Sanford Moreau and Harry A. Smith each con- 
tained a copy of the Charges annexed hereto 
and hereby made a part hereof, marked Ex- 



.V. L. E. B. et at 885 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

hibit 'A.' The letters to H. Lonnberg, Lincohi 
Olsen, Ed Thompson and William Sherman 
each contained a copy of the Charges annexed 
hereto and hereby made a part hereof, marked 
Exhibit 'B.' Attached to each of said letters, 
except the letter to William Sherman, and here- 
by made a part hereof, are the return delivery 
receipts for said letters and Charges which I 
received from the United States Post Office, 
Oakland, California. Attached hereto and here- 
by made a part hereof, marked Exhibit 'C,' is 
the letter to William Sherman, which was re- 
turned by the United States Post Office by rea- 
son of the fact that said William Sherman re- 
fused to accept delivery of said letter. The ad- 
dress set forth is the true and correct address 
of said William Sherman as shown for him on 
the Union books and he was residing there at 
the time he refused to accept delivery of the said 
letter. 

"Subscribed and Sworn to Before Me This 
3rd Day of October, 1945. 

/s/ "EMMA STANLEY. 

/s/ "J. B. MORRISON, 
"Notary Public in and for the County of Ala- 
meda, State of California." 

Chairman Wilson: Is there any objection? (No 



886 C olgate-Palmoli uc-P eet Co. Vb. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

response). If not, tlie exhibits may be received in 
evidence. 

(Copy of Charges against Clyde W. Haynes, 
Dave Luchsinger, Frank Marshall, Sanford Mo- 
reau and Harry A. Smith was received in evi- 
dence and marked Plaintiff's Exhibit No. 1.) 

(Copy of Charges against H. Lonnberg, Lin- 
coln Olsen, Ed Thompson, and William Sher- 
man was received in evidence and marked 
Plaintiff's Exhibit No. 2.) 

(Affidavit of Emma Stanley and attached 

documents were received in evidence and 

marked Plaintiff's Exhibit No. 3.) 

Mr. Heide: Mr. Chairman, I would like to call 

as the first witness for the prosecution, Charles 

Duarte. 



CHARLES DUARTE 

called as a witness on behalf of tJie Plaintiff, being 
first duly sworn, was examined and testified as fol- 
lows: 

Direct Examination 

By Mr. Heide : 

Q. Will you state your name and position with 
the Union? 

A. Charles Duarte, Business Agent, Oakland 
Unit, Local 6, ILWU, Book No. 0-817. 

Q. Do you know Clyde W. Haynes, Dave Luch- 



N. L. R. B. et al 887 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

singer, Frank Marshall, Sanford Moreaii and Harry 

Smith, who are Defendants in this case? 

A. I do. 

Q. Who are they? 

A. They were formerly the Stewards at the Col- 
gate-Palmolive-Peet Company. 

Q. Are you familiar with their activities as Shop 
Stewards at that plant? A. I am. 

Q. Did they always work together as one group, 
that is, collectively? A. They did. 

Q. Are you familiar with the grievance of a 
Negro Union brother at Peet's, named Harrison? 

A. I was involved in the Carlyle Harrison case 
at the time Brother Harrison was discharged from 
his job for coming in a few minutes late, I believe 
it was on a Saturday. 

Q. Will you just answer the question ''Yes" or 
"No?" A. Yes. 

Q. Are you familiar with that case ? 

A. I am. 

Q. Will you state what occurred in connection 
with the handling of the grievance? 

A. Brother Harrison came to me and stated that 
the Stewards at Colgate-Palmolive-Peet's had not 
taken his case to a final conclusion. I immediately 
went out to Colgate-Palmolive-Peet's and discussed 
it with the various Stewards, the Stewards named 
here. I was told by Marshall that the reason he did 
not want to take the beef up was because he did 



888 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

not like Harrison, and Harrison did not like him. 
The rest of the Stewards took the same position, 
that they did not want to take the case any further. 
I then immediately came back to my office and filed 
a grievance slip, which is a notification to appear 
before the Grievance Committee. I charged them 
on the Grievance Committee slip with conduct un- 
becoming stewards. They attended the next Griev- 
ance Committee meeting, at which time the whole 
case was threshed out, and were reprimanded by 
the Grievance Committee for their actions. 

Following this we had a meeting with the Em- 
ployer, the Union taking the position that the man 
was unjustly discharged, the Company taking the 
position that he was justly discharged, and the next 
step was to be arbitration. 

In the interim between the meeting of the Griev- 
ance Committee and the question of going to arbi- 
tration, which, under our organization, means w^ 
must first get approval of the Executive Board, 
Brother Harrison then went to work as a long- 
shoremen in ILWU, Local 10, and informed me that 
he did not want to take his case any further. 

Q. About what date did this incident occur? 

A. This occurred in '44, 1 think prior to that 

Mr. Grube: A point of information. 

A. (Continuing) : I think it was some time the 
latter part of '44. 



N. L. B. B. et al 889 

Intervener's Exhibit Xu. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

Mr. Grube: Brother Heide, a point of informa- 
tion. 

Chairman Wilson: Just a moment, Brother. 

A. (Continuing) : I may be wrong. It might 
have been the first part of '45. 

Q. (By Mr. Heide) : Is it correct that this in- 
cident you referred to was in March or April of 
1944? A. That is about right. 

Q. Preceding an annual House Meeting of the 
Colgate-Palmolive-Peet Company employees ? 

A. I would say that is correct. 

Q. Do you recall a grievance in connection with 
penalty time ? 

A. There had been some discussion at Peet's^ 
and a series of letters I believe had been written 
between our office, the Stewards and our attorneys, 
regarding penalty time. I went out and sat in a 
Grievance Committee meeting that the Stewards 
held every Monday with the Employers, and took 
the position that under the contract the section 
(which I cannot name) provided that anyone that 
worked over five hours without a meal was entitled 
to penalty time, meaning time and a half or the 
straight time overtime rate, such as the case may be. 

At this meeting it was decided that a check should 
be made of the employees who considered them- 
selves eligible for this penalty time. I made the 
suggestion at the meeting that one of the Stew- 
ards contact the employees in the particular de- 



890 C olgate-Palmolive-Peet Co. vs. 

Intervener's Exliibit No. 8 — Proceedings 
Before Warehouse Union — (Oon't) 

(Testimony of Charles Duarte.) 

partments, and that we would get these claims and 

submit them to the Company, and the Company 

would pay the valid claims, and if there were any 

claims, if there was any question about it, the Union 

would take them into the grievance machinery and 

settle them in that mamier. 

Q. In both of these cases, these two incidents or 
grievances you have testified to, were the Stewards 
involved the Stewards that were previously named, 
who are Defendants in this trial 

A. Yes, they were. 

Q. at the time that these grievances arose? 

A. Right. I just wanted to add one thing. 

At this meeting, the Secretary of the Grievance 
or Bargaining Conmiittee, which consisted of these 
five Stewards, was Harry Smith, and at this meet- 
ing he took it upon himself, on this recommenda- 
tion that I made, to get this survey so that we could 
file a claim for our penalty time, because the Com- 
pany took the position that anyone who had a valid 
claim and was entitled to their penalty time would 
be j)aid, but that because of the fact that there was 
some confusion regarding who was entitled to it, 
that everybody was going to make a claim that 
they would just as soon take the valid cases, pay 
them, and we could discuss the others. Smith took 
it upon himself to say that he would follow it up, 
and to my knowledge, to this day, that survey has 
never been made, and that survey has never been 



N. L. B. B. et at 891 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

brought to the attention of the Company and to my 

knowledge no one has ever been paid the penalty 

time that they have coming. 

Q. Do you recall the occasion in March or 
April of 1945 when the issue of collecting contri- 
butions for the Harry Bridges deportation case 
came up in the Union? A. I do. 

Q. Will you state what happened in connection 
with that matter? 

A. The Union membership unanimously went on 
record to support the Bridges case, something that 
they have been doing ever since the iirst Bridges 
case. 

Previous to this Union meeting, the Stewards 
Council, representing all of the Stewards, repre- 
senting all of our people in the various houses, took 
the same position. 

The Chairman of the Stewards Council, at the 
time this motion was passed, was Frank Marshall, 
one of the Defendants. There was no opposition, at 
the Stewards Council meeting, no opposition on the 
floor of the Union meeting. The collections were 
based on a voluntary basis, where members could 
give anything from $1 to $50 or $100, or give noth- 
ing. All of the Stewards became active in par- 
ticipating in the Bridges defense, with one shining 
example of non-cooperation, Colgate-Palmolive- 
Peet. 

The Stewards collected at Peet's — I think Mar- 



892 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

shall collected $21 in toto. None of the other Stew- 
ards collected a nickel, it was claimed, or it might 
have been put in as all the Stewards collected under 
Marshall. 

But, in order to get the drive moving, it became 
necessary to go out and investigate, and find out 
what v/as being done, and we found that the Stew- 
ards were actually sabotaging it by refusing to dis- 
cuss it with anyone, or refusing to attempt to col- 
lect any money for the Bridges defense. 

The officers sat down and discussed the question, 
and the people at Peet's who in the past had sup- 
ported all of the Bridges trials and had supported 
the Bridges defense fund then set up a committee 
out there and Brother Bopp, who was not on the 
Stewards Committee as such, collected $70, which 
was an indication to us that the Stewards had not 
even attempted to carry out the policy as enun- 
ciated by the membership or by the Stewards Coun- 
cil, of which Marshall was Chairman. There were 
other brothers who collected a total of about $38 
to $40. 

This, in the light of the fact that the Stewards as 
a whole collected $21, comprising five people, and 
three other people collected a total of over $100, 
brought to our attention the fact that these people 
were not cooperating and were not going along with 
Union policy, and when I say "policy" in this in- 
stance I mean the mandate of the membership that 



N. L. R. B. et at 893 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

the Bridges Defense Committee should be supported 

unanimously. 

Q. Do you recall an occasion in September of 
1944 when the matter of contributions to the Na- 
tional Citizens Political Action Committee came 
up in the Union? A. I do. 

Q. Will you tell what the Stewards at Colgate- 
Palmolive-Peet did in regard to that matter? 

A. The story is practically identical. Marshall, 
who was still the Chairman of the Stewards Coun- 
cil, sat in with the Stewards Council, and unani- 
mously recommended the voluntary contributions 
that were put out in receipt form for the National 
PAC, National Citizens Political Action Commit- 
tee. These were booklets, were triplicate receipts 
for donations for members of our Union donating 
from fifty cents to any sum up to, I believe, $10,- 
000, where the Smith-Connally Act prevented any 
more. We did not get any $10,000 donations. 

The Stewards as a group, or the Stewards Coun- 
cil as a group took it upon themselves to act as col- 
lectors for this particular campaign, this campaign 
being the elections in '44, the Roosevelt election, the 
Stewards as a whole took it upon themselves to be 
collectors in this particular campaign. 

The same story occurred again, where the Stew- 
ards refused to cooperate, refused to contact any of 
the people on the job, although our people at Peet's 
were 99 per cent behind the Political Action drive 



894 Colgate-Palmolive-Pcet Co. va. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

or the program of the Administration, and were 
willing and ready to support PAC in electing to 
(^*ongress those representatives best fitted to repre- 
sent the workers. 

The same thing occurred again, where it was nec- 
essary for the officials to contact rank and filers on 
tlie job in order to get the message down to the peo- 
ple ar.d to make the collections as such. 

Mr. Heide: Mr. Chairman, the next question I 
want to ask concerns a provision of the contract 
now in effect between this Union and Colgate-Palm- 
olivG-Peet Company. I do not have a copy of that 
contract here. If we could have just a moment, the 
Secretary has gone to get the contract. 
(Short recess.) 

Q. (By Mr. Heide) : I have here a cop}^ of the 
contract with the Colgate-Palmolive-Peet Company. 
I call your attention to Section 10 in the contract. 
That sections calls for the setting up of Department 
Stewards, doesn't it? A. That's correct. 

Q. What if anything did the Stewards do about 
that particular contract provision? 

A. Nothing. Normally — to be very technical 
about it — the Union, through the Stev/ards, or the 
Stewards at Palmolive-Peet technically were violat- 
ing the agreem.ent, because the agreement, under 
Section 10, ^'Adjustment Committee," the first para- 
graph reads: 



N. L. R. B. et al 895 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union^ — (Con't) 

(Testimony of Charles Duarte.) 

"The employer agrees to recognize the Union 
system of Department Stewards as the spokes- 
men and representatives of the employees in the 
departments from which they are elected." 

I was not in on the beginning of this hierarchy 
of five Stewards representing the entire plant, but 
it was raised by myself a few times with the Stew- 
ards on the question of representation for depart- 
ments, and the answer that I received was that it 
was too awkward to have stewards from each de- 
partment taking up grievances, and that they as a 
group were Chief Stewards. In reality there were 
five Chief Stewards. 

I made the comparison at the time between this 
particular contract and the contracts that we have 
at Palmolive-Peet, Durkees, or any of the big ware- 
houses or industrial plants where we have any- 
where from ten to twenty Department Stewards, 
and from that group of Stewards an Adjustment 
Committee or a Grievance Committee is elected to 
represent all of them, thereby giving everyone in 
the plant an opportunity to air his grievances to 
his own particular Steward. 

They thought this was wrong, that it could not be 
done. 

To further go on with this, I attended a House 
Meeting in June of last year, at which time a motion 
was made that all Stewards be elected automatically, 



896 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

the tive Stewards. There was some argument about 
it. The motion was defeated and they were nomi- 
nated separately and elected as the five Stewards 
representing all of the workers in that particular 
plant. 

Q. The same section of the contract, Section 10, 
sets up certain machinery for the adjustment of 
grievances. Do you know whether the Stewards that 
are defendants in this case utilize that machinery '? 

A. No. I don't think so, because I know for a 
fact that there are grievances, or have been griev- 
ances that were not satisfactorily reached or con- 
cluded, for the reason that they did not follow out 
the particular contract. 

In Paragraph 3 of Section 10 it states: 

''If the Department Steward is unable to 
reach a satisfactory settlement with the fore- 
men, he shall report the matter to one of the 
Chief Stewards, who in turn will take the mat- 
ter up with the Superintendent or other au- 
thority designated by the Employer. If the 
Chief Steward does not reach a satisfactory 
settlement of the grievance, it shall be turned 
over to the Adjustment Committee for settle- 
ment. In case the Employer shall employ an 
industrial labor relations manager, he shall be 
consulted in lieu of the Superintendent," 



N. L. R. B. et al 897 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

It was impossible, practically impossible for the 
five Stewards, or so-called "Chief Stewards," to 
follow out the letter of the agreement, because no 
Department Steward was ever consulted, for the 
simple reason there were no Department Stewards 
who could take the arguments in. They met in meet- 
ings with the Employer, they sat down, concluding 
nothing, and I made the statement at one of the 
meetings that I would refuse to attend a meeting 
of a committee consisting of five Stewards who were 
supposed to adjust grievances, where they did not 
adjust grievances. 

The contract as such was never followed out 
under Section 10 providing for Department Stew- 
ards, and the procedure for taking up of griev- 
ances and the steps into arbitration, if necessary, if 
they could not be settled by the Adjustment 
Committee. 

Q. Section 10 also calls for the selection of a 
Chief Stewards. Did the Stewards at Peet's ever do 
anything about that? 

A. No. The reason for it was, I believe, that 
none of the five Stewards wanted to trust any of 
the others, and they simply stated that, "We are 
all Stewards. We are all Chief Stewards. There 
will be no one Chief Steward, and we will all be 
called in on all grievances." 

Q. What sort of judgment did the Defendant 
Stewards use in taking up grievances? That is, did 



898 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

they present many phony beefs'? Can you give any 

examples of the type of grievances that were 

taken up ? 

A. Well, there were many — what we call "phony 
grievances", grievances that had no place before 
the Management, that could have been settled 
within the department itself, grievances relative to 
the question of how many men were working on the 
job, that could have been settled in consultation 
with the departments or the people within the 
departments. 

The only comparison I can make, as an official of 
the Union, is to make a comparison of what happens 
in some of our other houses where Department 
Stewards within the department settle the petty 
grievances within that department, and the Chief 
Steward in any of these houses is only called in as 
a last resort before calling in a Business Agent, if 
he cannot settle the problem. 

They went through a whole series of double talk 
at these meetings, that resulted in nothing concrete 
for the benefit of the workers involved. 

Q. Brother Duarte, you are familiar with the 
Constitution of Warehouse Union, Local 6? 

A. I am. 

Q. Does that Constitution provide a means 
whereby officials of the Union can be brought up 
on charges of misconduct? A. It does. 

A. Did any of the nine Defendants in this case, 



N. L. R. B. et at 899 

Intervener's Exhibit No, 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Duarte.) 

to your knowledge, ever bring charges under the 

Union Constitution against any official of this 

Union ? 

A. None of the Defendants ever brought charges, 
written charges under the Constitution as provided 
for, or ever brought verbal charges. By that I 
mean, ever took the floor at a Union meeting in 
charging the officers with malfeasance of office, et 
cetera. They had a right, under our Constitution, 
to bring written charges, and had the God given 
right to get up on the floor of our Union meeting 
and point out, if they had any charges to make, 
point out the actions of the officers before the entire 
membership. Neither one of these steps were taken 
by any one of these Defendants. 

Mr. Heide: That is all the questions of this 
witness. 

Chairman Wilson : That is all the questions ? 
(Witness excused.) 

Chairman Wilson : Mr. Heide, will you call your 
next witness? 

Mr. Heide: Pardon? 

Chairman Wilson: Will you call your next 
witness ? 

Mr. Heide: If there are no questions of the 
witness from the defense (and I assume there is 
none), the defense not being here represented, I will 
call as the next witness Louis Gonick. 



900 Colgate-Pahnolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

LOUIS GONICK 

called as a Avitness on behalf of the Plaintiff, being 
first duly sworn, was examined and testified as 
follows : 

Direct Examination 

By Mr. Heide : 

Q. Will you state your name, your book number 
and your position with the Union"? 

A. My name is Louis Gonick, Book No. 0-2343, 
Business Agent for the Warehouse Union. 

Q. Do you know Haynes, Luchsinger, Marshall, 
Moreau and Smith, former Stewards at Peet's? 

A. I do. 

Q. How did you come to know them? 

A. I came to know them in my capacity as Busi- 
ness Agent, taking up grievances in negotiations 
with the Company. 

Q. Calling your attention to the last of May and 
the first of June of 1945, did you ask the Stewards 
to arrange for a meeting of the employees at Peet's? 

A. I did. 

Q. What was the purpose of the meeting ? 

A. Well, the purpose of the meeting was to 
elect new Stewards, or at least to have an election 
of Stewards to discuss the contract and the nego- 
tiations which were there in progress, and to take 
up any grievances that were in the plant, that 
usually come out at a House Meeting. 



N. L. R. B. et al 901 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Louis Gonick.) 

Q. On how many different occasions did you ask 
the Stewards to arrange for such a meeting ? 

A. I asked them on three different occasions. 

Q. What did they ever do about your request ? 

A. They did not do anything. As a matter of 
fact, they prevented the Union from calling a meet- 
ing. On the first occasion — that was the latter part 
of May, I approached the Stewards and called their 
attention to the fact that a House Meeting was 
due, the last House Meeting having been held about 
a year before. They asked me what we needed a 
House Meeting for, and I told them for the reasons 
I have described, for discussion of negotiations and 
grievances and election of Stewards. They did not 
warm up to the idea at all, particularly Marshall and 
Smith and Haynes, and they stated that there was 
no need to have a meeting, there were no grievances, 
everybody was happy and there would be no purpose 
served in calling a House Meeting. 

I called their attention to the fact that the Com- 
pany had made certain offers in connection with 
negotiations, and they stated there too that it would 
not be necessary to have a House Meeting for that, 
to gain the ajDproval of the membership. All that 
was necessary was to go around to the various indi- 
viduals involved, say on the shift differentials, and 
the women's pay, and ask them if they approved. 

I told them that this was no way — that in a mat- 
ter of this sort the whole house has to have a dis- 



902 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Louis Gonick.) 

cussion on it, and either accept or reject the pro- 
posals, and Marshall told me that that was unneces- 
sary, that the men would be satisfied with anything 
that they got, and there was no need to discuss it 
any further. 

However, I still persisted and stated we should 
have a House Meeting, and they said, ^'Well, we will 
discuss it further. ' ' 

Q. Did you ever furnish the Stewards with a 
notice of meeting, and ask them to post if? 

A. Yes, I did that, too. 

Q. What did they do about it? 

A. Well, they never posted it, but, preceding 
that meeting, that is about two weeks after my first 
approach to them, I asked them again whether they 
had thought the thing over, and whether they would 
have a meeting, and they said, "Well, maybe." 

So, I asked them again. I asked them whether 
they would get the hall, rent the hall and make all 
the arrangements. They said that they would. 

About two weeks later I came back again. I said, 
"Have you made the arrangements?" They in- 
formed me that they had forgotten all about it. 

So, at that point I informed them that I would 
make the arrangements — that the Union would 
make the arrangements themselves, and asked them 
what they thought would be a satisfactory time to 
have a meeting. 

So, they informed me that it would be impossible 



N. L. R. B. et al 903 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Louis Gonick.) 

to have a meeting without three weeks' notice. I 
thought this was rather strange, because we fre- 
quently call House Meetings on 48-hour notice. They 
told me that it would take at least three weeks to 
inform the members in the plant about a meeting. 
However, the arrangements were made to rent the 
hall on University Avenue, the Finnish Hall, and a 
notice was given them for j^osting. 

I asked them whether they would post the notices. 
They said they would. I gave the notices to Mar- 
shall. Two of the other Stewards were present. 
I went around in the plant, came back again and 
asked each Steward, I said, "You know you have 
your notices for a meeting. You will see that they 
are posted." 

They informed me that they would see that they 
were posted. 

The notices were never posted. 

Q. Calling your attention to July 30 of 1945, did 
the Stewards call a meeting on that date ? 

A. A meeting was called — that is Monday, isn't 
it? There was a meeting called for another group 
that was organizing. 

Q. Let me ask you this question. If I under- 
stand your answer, a meeting was called by the 
Stewards, is that correct, on that day, and if so, was 
that meeting authorized by the Union? 

A. No, there was no — there was a meeting called 
that was not authorized bv the Union. 



904 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Louis Gonick.) 

Q. Did the Stewards post notices of that 
meeting? A. Yes, they did. 

Q. I hand you a paper and ask you if this is 
one of the notices posted. 

A. (After examining) : Yes. That is the notice. 

Mr. Heide : I would like to introduce this as the 
Prosecution's Exhibit No. 4. 

Chairman Wilson: It will be received. 

(Copy of notice of meeting was received in 
evidence and marked Plaintiff's Exhibit No. 4.) 

The Witness: In connection with this notice, 
this notice was posted on Saturday afternoon, call- 
ing for a meeting, I believe on Monday, which 
was far less than the three weeks that it was neces- 
sary to notify members. 

Q. (By Mr. Heide) : In other words, it did not 
require three weeks in this case to notify the em- 
ployees in advance of a meeting'? 

A. That's correct. 

Q. Do you recall when the Stewards Council 
meetings were changed and the Stewards Council 
was amalgamated with the Executive Board and 
became the Executive Council of the Union "? 

A. I recall the occasion. I don't recall the exact 
date at the moment. 

Q. Were Stewards under a duty to attend those 
meetings'? A. They were. 

Q. That is, either of the Stewards Council or 
the Executive Council, as it is now constituted'? 



N. L. R. B. et al 905 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Louis Gonick.) 

A. That's correct. 

Q. Did the Stewards at Peet's, the former 
Stewards at Peet's who are Defendants in this case 
attend the meetings of the Executive Council? 

A. At the beginning Marshall attended, and 
Smith. Marshall was elected as the Chairman, and 
Smith as the Secretary. They went to one or two 
meetings, and then they failed to come any more. 

Q. Was their attendance necessary to the effi- 
cient and proper discharge of their duties as 
Stewards ? 

A. Yes, it was. The Stewards Council meeting 
is the one place where the Stewards get to- 
gether with the Executive Board, discuss and deter- 
mine policies and provide means for carrying them 
out. Unless they attend the Stewards Council meet- 
ings, they are in effect divorced from the Union and 
the Union policy, to a large degTee, particularly 
with these Stewards who neither attended the Coun- 
cil meetings or the membership meetings. 

Q. When you refer to these Stewards Council 
meetings, you mean the combined meetings of the 
Executive Board and Stewards Council, which is 
called in the Union the "Executive Council"? 

A. That's correct. 

Q. What was the practice of the former Stew- 
ards at Peet's in regards to attending general mem- 
bership meetings of the Union? 



906 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Louis Gonick.) 

A. Well, none of the Stewards or — pardon me, 
will you repeat that question again *? 

Q. What was the practice of the Stewards at 
Peet's who are Defendants in this case in regard to 
attending the general membership meetings of the 
Local Union "? 

A. All the Stewards but one have not been to a 
membership meeting for many months. They had 
obtained excuses for themselves for not attending 
these meetings. Of course, they were authorized 
also to issue excuses to others. However, they them- 
selves did not go, with the exception of one. 

Q. Are you familiar with a grievance that came 
up at the Colgate-Palmolive Company plant involv- 
ing a Negro member of the Union named Ulysses 
Norman, and a white member named Andy 
Nigro? A. I am. 

Q. Did the Defendants, Frank Marshall and 
William Sherman, have anything to do with that 
particular case*? A. They did. 

Q. What was their part in that case? 

A. Well, I will have to outline the whole thing, 
more or less. 

In 19 — at least, this last year, a Negro member 
was in the dressing room at Peet's when another 
member came in, a white member, and he stated in 
the presence of this Negro that, "There are too 
many Negroes in the Union, and the quicker we get 
them out of here the better" 



N. L. R, B. et al 907 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Louis Gonick.) 

He did not say "Negro." He said a more deroga- 
tory term, and he used other expressions. 

The Negro member cited him — cited the white 
member before the Grievance Committee for having 
violated the no-discrimination pledge. Frank Mar- 
shall and Sherman came to the Grievance Com.- 
mittee to defend the white member, whose name I 
believe was 

Q. I stated the name. Ulysses Norman was the 
Negro member. The white member's name was 
Andy Nigro. 

A. Yes. And, their contention there was, when 
they stated in most positive terms that they had a 
right to use any language they wanted to, that say- 
ing a thing did not constitute discrimination; an 
overt act was necessaiy. They brought out Web- 
ster's Dictionary to prove that "discrimination" 
means some overt act, that one could say anything 
one pleased, no matter what the consequences of that 
language were. 

Q. I ask you, was there a Union rule adopted by 
vote of the membership that anyone found guilty 
of expressing race hatred or prejudice because of 
race, color, creed, sex or political opinion would be 
subject to a tine not less than $251 

A. That's correct, and it was brought out on the 
Union floor many, many times. 

Q. Wlien this case was discussed at the Union 
meeting, the Defendants, Sherman and Marshall, 



908 C olgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Gon't) 

(Testimony of Louis Gonick.) 

also spoke and took approximately the same posi- 
tion they had in the meeting of the Grievance 
Committee ? 

A. They took the same position, yes. 

Q. You mentioned William Sherman. Was he 
formerly an officer of this Union? 

A. He was. 

Q. What position did he hold? 

A. Business Agent. 

Q. Can you fix any time or occasion after which 
he commenced to work against the interests of the 
Union ? 

A. Well, I would fix January of 1944 as that 
time. That is when he was defeated for office. 

Q. Will you state in your own words what activi- 
ties or part he took that served to undermine the 
Union ? 

A. Well, this is one example of it. I can cite 
other examples. 

They were along the line that the Stewards were 
taking, refusal to come to the Executive Board 
meetings after he was elected, certain state- 
ments that he made in the General Executive Board 
which led one to believe that he was an oppositionist, 
opposing the Union program, because it was enun- 
ciated by officials that he did not like. Many of the 
concrete things, of course, came out later, when we 
discovered that he was more or less the brain work 
behind the opposition group at Peet's. 



N. L. R. B. et al 909 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Louis Gonick.) 

Mr. Heide: That is all the questions of this 
witness. 

Chairman Wilson: You may be excused. 
(Witness excused.) 

Chairman Wilson: Will you call your next 
witness ? 

Mr. Heide: The next witness I want to call is 
Hack Gleichman. 



HACK GLEICHMAN 

called as a witness on behalf of the Plaintiff, being 
first duly sworn, was examined and testified as 
follows : 

Direct Examination 

By Mr. Heide : 

Q. Will you state your name, book number and 
your position with the Union? 

A. The last name is Gleichman, G-l-e-i-c-h-m-a-n ; 
Hack, H-a-c-k. Book No. 0-3499. Field Representa- 
tive, Local 6, Oakland Division. 

Q. Are you acquainted with the products manu- 
factured by the Colgate-Palmolive-Peet Company 
plant in Berkeley? A. I am. 

Q. Were they engaged in the manufacture of 
any war materials on or about the 1st day of 
August, 1945 ? A. Yes, they were. 



910 Colgate-Pahnolive-Peet Co. va. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Hack Gleichman.) 

Q. What were those materials? 

A. Glycerine. 

Q. Did a stoppage of work occur at the plant 
on or about August 1st? A. It did. 

Q. To what extent, if any, was the production of 
war materials affected by that walkout? 

A. Well, I couldn't say exactly how many thou- 
sands of gallons of glycerine, but I know it was 
materially affected, because the Navy was begin- 
ning to squawk about the situation. 

Q. It stopped the manufacture of glycerine at 
the i^lant ? A. Glycerine, yes. 

Q. How long did this stoppage last? 

A. About three days. 

Q. Was the walkout authorized by Warehouse 
Union, Local 6? A. It was not. 

Q. What was the policy of Warehouse Union, 
Local 6 in regard to strikes or stoppages in war- 
time? 

A. Local 6 had a No-Strike pledge which had 
never been broken during the entire war period. 

Q. Did you make any investigation as to who 
were the leaders in that unauthorized strike? 

A. Well, in my work I was in a position to know 
who was. 

Q. Can you name those leaders ? 

A. Sherman, Lonnberg, Olsen and one more. 

Q. You say one more? 



.V. L. R. B. et at 911 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Hack Gleichman.) 

A. There were four that I know of in that 
situation. 

Q. Was the other one that you refer to the 
Defendant Thompson ? 

A. Thompson, that's correct. 

Q. Were you acquainted with the former Stew- 
ards, Haynes, Luchsinger, Marshall, Moreau and 
Smith? A. I was. 

Q. What was their attitude with reference to 
the Union's program of political action? 

A. Well, they were not very enthusiastic about 
it, because in my activities with them, whenever we 
asked them to take some concrete step for develop- 
ing the policy, whether it be on maintaining the 
price ceilings under OPA or breaking the Little 
Steel Formula, or going for an increase in wages 
across the Board, which was our position at the 
time, they just would not participate. 

Q. Do you recall an occasion when the Union 
asked the Stewards to circulate petitions in the 
plant for repeal of the Little Steel Formula and for 
a 20 per cent wage increase ? 

A. Yes. As a matter of fact, around the time — 
a couple of weeks before this notice of their special 
meeting was put up, I remember telling them about 
this program, because they were talking about im- 
proving conditions around there, and I pointed 
out that our problem was a similar problem to those 
of our workers all over the area and throughout the 



912 C olgate-Palmolive-Peet Co. V8. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Hack Gleichman.) 
country, and that what we were trying to do was to 
break the Little Steel Formula first, then, through 
the War Labor Board, we would be able to get more 
money for our people, and as a result of that dis- 
cussion I said that I would mail to each one of 
them a few petitions which had just been put out by 
the National CIO, and that I would mail them to 
their homes so that they could get them as quickly 
as possible, and that when I came out there in a 
few days from then, I would pick them up. Each 
one I think contained — had room for around twenty 
signatures. That would mean each one could get 
about sixty, which would about take care of the 
plant. 

I did that, and when I went back there a few 
days later, not one of them had done a thing about 
it. As a matter of fact, one of them, Moreau, said 
that he thought that this was not what we were 
supposed to do, that what we were going to do was 
go for more money, and I explained to him that you 
could not go for any more money unless you broke 
the Little Steel Formula, and the attitude of the 
rest was just that — was just that it was unimportant, 
so they either left the letters home or tore them 
up, or something. Petitions, rather; not letters. 

Q. Did the former Stewards ever oppose the 
Union's program in regards to the OP A? 

A. Well, their attitude on OPA was right along 
the same lines of their attitude toward Little 



N. L. R. B. et al 913 

Intervener's Exhibit No, 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Hack Gleichman.) 
Steel, breaking the Little Steel Formula, expressed 
at that time that I spoke to them about the petitions. 
They did not think that the fight that we were 
making to retain whatever we could of OPA regu- 
lations with regard to consumer's goods especially, 
was anything that we should waste too much time 
about. As a matter of fact, they said — I don't re- 
member just which one of the five said it — but it 
was stated that, "Political action is all right, but we 
do too much of it. ' ' 

Q. I show you seven papers here, entitled 
"Progress Report", bearing the dates of August 7, 
August 13, August 31, September 5, September 8, 
September 12 and September 15, and ask you if 
you can identify them. 

A. (After examining) : I can. These are re- 
ports put out by the spokesmen for the AFL 
Chemical Workers. 

Q. The Defendants in this case? 

A. Yes. They were taking the leadership in this 
activity. 

Mr. Heide : Mr. Chairman, I would like to intro- 
duce these as evidence in this case, as the Prosecu- 
tion's Exhibits 5 A, 5B, 5C, 5D, 5E, 5F and 5G. 

Chairman Wilson: Is there any objection? (No 
response.) 

If not, the exhibits may be received in evidence. 
(Copies of Progressive Reports dated respec- 
tively August 7, 1945, August 13, 1945, August 



914 C olgate-P almolive-P eet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Hack Gleichman.) 

31, 1945, September 5, 1945, September 8, 1945, 
September 12, 1945 and September 15, 1945 
were received in evidence and marked Plain- 
tiff's Exhibits 5 A through 5G respectively.) 

Mr. Heide: That is all the questions of this 
witness. 

(Witness excused.) 

Mr. Heide: I would like to call now Chuck 
Grube. 



CHARLES GRUBE 

called as a witness on behalf of the Plaintiff, being 
tirst duly sworn, was examined and testified as 
follows : 

Direct Examination 

By Mr. Heide: 

Q. Will you state your name and occupation, 
and your book number ? 

A. My name is Charles Grube, G-r-u-b-e, Book 
No. 9-1869, classified as a Foreman at Colgate- 
Palmolive-Peet. 

Q. Are you acquainted with the strike that took 
place at Peet's during the first part of August? 

A. Yes, sir. 

Q. What effect did the strike have on the Com- 
pany's production of materials for the Armed 
Forces % 



A^. L. R. B. et al 915 

Intervener's Exliibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Grube.) 

A. Well, they kmd of cut it down during the 
war. We was down to zero during the war. We had 
that war contract to put out, and they lost glycerine 
that was vital to war products. I say practically a 
week — we lost practically a week. I can't say a 
week, but we lost — we had to work overtime to make 
it up. 

Q. You lost considerable production as a result 
of the strike? 

A. That's right, on dynamite glycerine. 

Q. Do you know who the ringleaders of this 
strike were? A. Yes, sir. 

Q. Will you name them? 

A. Yes, sir. Miller, Sherman, Ed Thompson, 
Line Olsen, Frank Marshall, and that is all. That's 
the ringleaders. Thej^ coerced the rest of them into 
doing it. 

Q. Did you attend the rump meeting that was 
called at the Finnish Brotherhood Hall on July 30, 
1945? A. I did. 

Q. Who were the leading figures at that 
meeting ? 

A. Ed Thompson, Line Olsen, Harold Lonnberg, 
Bob Ashworth. They was the ringleaders. 

Q. Sherman ? 

A. Sherman was the chairman. 

Q. Sherman was the chairman of that meeting? 

A. That's right. 

Q. Were any charges of misconduct against offi- 



916 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Grube.) 

cials of Warehouse Union, Local 6 made at that 

meeting 1 

A. There wasn't — there was — yes, misconduct, 
but it was mostly stealing was brought up at that 
time. That comes under misconduct. 

Q. Who made the charges ? 

A. Bill Sherman and Ed Thompson. 

Q. What were they? 

A. That Heide took money from the PAC and 
put it in his own pocket for traveling expenses. 

Q. When you say "PAC", what do you mean? 

A. P.A.C. [37] 

Q. What else? 

A. What else? Well, they were going to raise 
the dues in order to make more money for the CIO. 
The CIO was practically broke, and they was going 
to raise the dues, and CIO was stealing from one 
pocket — in other words, Paul was stealing from 
Paul to pay Simon, or whatever it is. They was 
just taking from one pocket in the other, to make 
it up, and we hadn't had a financial statement for 
the last four months. 

Q. Were there any discriminatory statements 
made concerning the officials or other members of 
the Union, regarding their political affiliations? 

A. Yes. It was claimed that there was no more 
"Communism" in this Local, that it was "Heide- 
ism," that Communism was a thing of the past, and 
now it was "Heideism", that Sherman was Busi- 



.Y. L. R. B. et al 917 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles Grube.) 

ness Agent of this Local, and that Heide was 
squawking in the office, and beating down Sher- 
man's throat, that he should listen to his way of 
thinking. There was no more Commmiism; it was 
all "Heideism" from now on. Heide was the big 
shot. 

Q. Was anything said about racketeering on the 
part of Union officials? 

A. Right. They said that you — I mean, Paul 
Heide, "Chilly" Duarte, was racketeering. Paul 
Heide was runnuig this Union for his own 
advantage. 

Mr. Heide: That is all the questions of this 
witness. 

Chairman Wilson: Are there any objections'? 
(No response.) 

If not, the witness may be excused. 
(Witness excused.) 

Mr. Heide : The next witness is Charles Leacock. 



918 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

CHARLES W. LEACOCK 

called as a witness on behalf of the Plaintiff, being 
first duly sworn, was examined and testified as 
follows : 

Direct Examination 

By Mr. Heide : 

Q. Will you state your name and your Union 

A. Charles L. Leacock. 

Q. Union Book number? 

A. Union Book No. 0-126. 

Q. And your occupation? 

A. Maintenance man. 

Q. At Colgate-Palmolive-Peet Company? 

A. Yes. 

Q. Calling your attention to the walkout which 
occurred at the plant on or about August 1st of 
this year, were you present the day of that walkout ? 

A. Yes, I was. 

Q. Did you hear anyone agitating for a strike 
on that day, or prior to the day the strike occurred ? 

A. Prior to the day of the strike. 

Q. Who was it? A. Ed Thompson. 

Q. Anyone else? 

A. And Marshall, Luchsinger, and '^ Monroe" — 
or, Moreau; that's his name. 

Q. Stanford Moreau? A. Yes. 

Q. Were you present at the rump meeting which 



N. L. R. B. et al 919 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles W. Leacock.) 

was called on July 30, 1945, at the Finnish Hall in 

Berkeley ? A. Yes. 

Q. Did you hear anyone in that meeting attack- 
ing officials of this Union? 

A. Absolutely. 

Q. Will you state in your own words what was 
said, as you recall it, and who said it? 

A. Sherman was the Chairman, and Mr. Thomp- 
son at the time was the spokesman, relieved by Mr. 
Lonnberg, who stated that the "Heideism" of Local 
1-6 was in progress. They accused officials and 
executives of this Union as racketeers and looting 
the treasury of Local 1-6. And, I sat there and 
listened. 

Q. Did you hear any "Red-baiting", or remarks 
about the political affiliations of any of the officials 
or members of the Union ? A. Yes, I did. 

Q. Will you state what you heard ? 

A. In the discussion of the Union that after- 
noon, which personally I didn't get heads or tails of 
it, becaues from what I, in my own common knowl- 
edge, never had anything to work on, they couldn't 
finish the sentence, and the gentleman got so 
exhausted that he had to call for some help, and the 
officials of this organization and the action of 
the operation of this Union was liit from stem to 
stern. In other words, you were doing everything 
but the right thing. 



920 Colgate-Pahnolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Charles W. Leacoek.) 

Mr. Heide: That is all the questions I have of 
this witness. 

Chairman Wilson: That is all. 
(Witness excused.) 

Mr. Heide : I would like to call Pauline Goulart. 



PAULINE GOULART 

called as a witness on behalf of the Plaintiff, being 
tirst duly sworn, was examined and testified as 
follows : 

Direct Examination 

By Mr. Heide: 

Q. Will you state your name and Union Book 
number ? 

A. Pauline Goulart, G-o-u-l-a-r-t, 0-W177, and 
I am a machine operator at Colgate-Palmolive-Peet. 

Q. Calling your attention to the walkout that 
has been referred to in previous testimony, which 
occurred on or about the 1st day of August, were 
you present on the day of that walkout ? 

A. I was. 

Q. Did you hear anyone urging the employees 
to walk out? 

A. Yes. I was operating one of the machines, 
and Ed Thompson came over to the machines on the 
whole unit, and told us to shut off our machines. 



N. L. R. B. et al 921 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

(Testimony of Pauline Goulart.) 

He just said, "Shut down those machines." He told 

us that they were having a meeting. 

Mr. Heide: That is all. 

(Witness excused.) 

Mr. Pleide: Mr. Chairman, I would like to ask 
for a recess of five minutes at this time. 

Chairman Wilson: If there is no objection, we 
will recess for five minutes. 
(Short recess.) 

Chairman Wilson: Come to order, please. We 
will proceed with the case. 

Mr. Prosecutor, do you have any more witnesses ? 

Mr. Heide: Mr. Chairman, I would like to take 
this opportunity to point out that we called a num- 
ber of witnesses, but I do not wish to call them at 
this time. I think that the case is complete. I would 
just like to say that w^e thank them for being pres- 
ent here, and we are sorry that they were troubled 
to come down here. 

We will not call any more witnesses. 

Chairman Wilson: Does anybody wish to say 
anything on behalf of the Defendants'? If so, they 
will have the right to have the floor. (No response) 

Mr. Silas Hansen: Mr. Chairman, it strikes me 
as though the Defendants, the same as any other 
defendants, have a right to be heard. How we are 
going to do it, I don't know. However, it looks as 
though they don't want to be heard. If the ma- 



922 Colgate-Pahnolive-Peet Co. vs. 

Intervener's Exhibit No. 8 — Proceedings 
Before Warehouse Union — (Con't) 

jority considers it advisable to again attempt to get 
them together, I think it should be done. However, 
that might not be the consensus of opinion. That 
is my personal feeling, that they should be heard, 
but it is quite obvious that they don't want to be 
heard. 

I think that is about all I can say on that. 

Chairman Wilson: Does anyone else have any- 
thmg to say*? (No response) 

We will take the case under advisement. Our de- 
cision will be presented at the next regular mem- 
bership meeting, as provided in the Constitution. 

At this time I will bring this meetng to a close. 
The case is now closed. 

(Whereupon at 4:00 P.M., Wednesday, Oc- 
tober 3, 1945, the hearing in the above-entitled 
matter was closed.) 



A^ L. R. B. et al 923 

INTERVENER'S EXHIBIT No. 9 

Before: Warehouse Union, Local 6, International 
Longshoremen's & Warehousemen's Union 

In the Matter of 

WAREHOUSE UNION, LOCAL 6, INTERNA- 
TIONAL LONGSHOREMEN'S & WARE- 
HOUSEMEN'S UNION, CIO, 

Plaintiff, 

vs. 

MANUEL ALEGRE, TERRY ANDERSON, 
ROBERT ASHWORTH, TOMMY AZEVE- 
DO, VINCENT BARBONI, ANN CERRATO, 
FELIX DENKOWSKI, HENRY GIANNA- 
RELLI, HENRY HELLBAUM, MARTIN 
HEPPLER, GLEN HIXON, WILLIAM 
HOWARD, ALDEN LEE, MANUAL MU- 
NOZ, KAY NORRIS, INA PAIGE, K. PE- 
RIERA, JOHN PERUCCA, MIKE RAMIE- 
REZ, CALIXTO RIGO, OPHELIA REYES, 
F. L. RICHMOND, ROSE ROS, MAN- 
UEL SOUZA, NICK TATE, GENEVIEVE 
YOUNG, ALBERT ZULAICA, 

Defendants. 

Green Room, Warehouse Union, Local 6, 
158 Grand Avenue, Oakland, California 

December 17, 1945. 8:30 P.M. 

Before Trial Committee: 
P. Lind, Chairman. 
M. Pavalini. 



924 C olgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Wareliouse Union — (Cont'd) 

Joe Qnartarola. 

J. Silva. 

M. Frietas. 

Appearances : On Behalf of the Plaintiif : Charles 
Duarte, Business Agent, Warehouse Union, Local 
6, 158 Grand Avenue, Oakland, California. 

Present: Ra}^ Heide, International Representa- 
tive, International Longshoremen's & Warehouse- 
men's Union. 

Enmia Stanley, Office Secretary, Warehouse 
Union, Local 6, LL.W.U., CIO. 

PROCEEDINGS 

The Chairman: As the Chairman for the Trial 
Committee, I will now call the meeting to order. 

The first thing we will have to do is to appoint 
a Sergeant-at-Arms. I will ask Fred Fields to take 
over. 

Will Miss Stanley please act as Clerk for the 
Trial Committee? 

Miss Stanley: Yes, I will. 

Mr. Anderson: Mr. Chairman, may I have a 
word before you get into the trial? 

There are some of us here who don't want to 
stand trial under the present charges. We have pre- 
pared a statement which Kay Norris is going to 
read. There are some of us who want to stand trial 
tonight. So, those of you who want to stand trial can 
remain, but after the statement is read, those who 
don't want to stand trial may leave. 



N. L. R. B. et al 925 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

Mr. Duarte: Mr. Chairman, my name is Charles 
Duarte, acting as Prosecutor in this case. 

I would like to suggest that the people who have 
a statement to make wait until that order of busi- 
ness which provides for a plea, and at that time 
have the statement read, with the names of the peo- 
j)le that, I suppose, are signed to it. I think that 
would be the appropriate time to present the state- 
ment as such. 

Mr. Howard: We want an opportunity to read 
it before the trial starts. 

The Chairman : We will now proceed. 
The Clerk will read the Bill of Particulars given 
to the defendants. 

The Clerk : This represents a Bill of Particulars 
sent to the following people : 

Manuel Alegre Kay Norris 

Terry Anderson Ina Paige 

Robert Ashworth K. Periera 

Tommy Azevedo John Perucca 

Vincent Barboni Mike Ramierez 

Ann Cerrato Calixto Rigo 

Felix Denkowski Ophelia Reyes 

Henry Giannarelli F. L. Richmond 

Henry Hellbaum Rose Ros 

Martin Heppler Manuel Souza 

Glen Hixon Nick Tate 

William Howard Genevieve Younsc 

Alden Lee Albert Zulaica 

Manuel Munoz 



926 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

This is dated December 3rd. It reads: 

"You are hereby informed that the trial on 
the charges tiled against you, of which you 
have already been notitied, will be held on Mon- 
day, December 17, 1945, at 8:00 P.M., in the 
Green Room at 158 Grand Avenue, Oakland, 
California. 

"In accordance with the request of several 
of the defendants for a Bill of Particulars, we 
have consulted the members who filed the 
charges and hereby advise you that the sole 
issue at the trial will be your alleged partici- 
pation in an unauthorized strike in wartime, 
contrary to the I.L.W.U.'s No-Strike pledge. 
"If you wish to plead guilty to this charge 
and waive trial, you may sign the enclosed 
'Plea of Guilty and Waiver of Trial.' Under 
the heading 'Reasons for exercising leniency 
in my case' you may state any reasons which 
you think excuse or lessen your offense. This 
information will be taken into consideration by 
the Trial Committee in determining your case. 
The enclosed stamped, self-addressed envelope 
may be used in returning the plea." 

It is signed by Paul Heide, Vice-President. 
Attached to this letter is a "Plea of Guilty and 
Waiver of Trial," which says: 

"Receipt is acknowledged of a copy of the 
charges filed against me under the constitution 



iV. L. R. B, et al 927 

Intervener's Exhibit Xo. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

and by-laws of Warehouse Union, Local 6, 
I.L.W.U. I hereby waive trial upon eaeli and 
all of the said charges and enter a plea of 
Guilty to the charge of having engaged in an 
unauthorized strike in wartime, contrary to the 
I.L.W.U. 's No-Strike pledge. I hereby sub- 
mit myself to the verdict of the Trial Commit- 
tee and request that it exercise leniency in my 
behalf." 

Then there is a place for the date and the signa- 
ture, and "Reasons for Exercising Leniency" in 
the case of whoever signed the letter. 

The Chairman: You have all heard the Bill of 
Particulars. 

I will ask the Clerk to call the names of the De- 
fendants. When your name is called, you will an- 
swer "Present," and then state whether you are 
guilty or not guilty. 

The Clerk: Manuel Alegre. 

Mr. Alegre: Not Guilty. 

The Clerk: Terry Anderson. 

Mr. Anderson: Not Guilty. 

The Clerk: Robert Ashworth. 

Mr. Ashworth: Not Guilty. 

The Clerk : Tommy Azevedo. 

Mr. Azevedo: Not Guilty. 

The Clerk: Vincent Barboni. 

Mr. Barboni: Not Guilty. 



928 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

The Clerk: Ann Cerrato. 

Miss Cerrato: Not Guilty. 

The Clerk: Felix Denkowski. 

Mr. Denkowski: Not Gruilty. 

The Clerk: Henry Giannarelli. 

Mr. Giannarelli: Not Guilty. 

The Clerk: Henry Hellbaum. 

Mr. Hellbaum: Present. Not Guilty. 

The Clerk: Martin Heppler. 

Mr. Heppler: Not Guilty. 

The Clerk: Glen Hixon. 

Mr. Hixon : Not Guilty. 

The Clerk : William Howard. 

Mr. Howard: Not Guilty. 

The Clerk: Al den Lee. 

Mr. Lee : Not Guilty. 

The Clerk : Manuel Munoz. 

Mr. Munoz: Not Guilty. 

The Clerk: Kay Norris. 

Miss Norris: Not Guilty. 

The Clerk: Ina Paige. 

Miss Paige: Not Guilty. 

The Clerk: K. Periera. 

Mr. Periera : Not Guilty. 

The Clerk: John Perucca. 

Mr. Perucca : Not Guilty. 

The Clerk : Mike Ramierez. 

Mr. Ramierez: Not Guilty. 

The Clerk: Calixto Rigo. 



N. L. R. B. et at 929 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

Mr. Rigo: Not Gruilty. 

The Clerk: Ophelia Reyes. 

Miss Reyes: Not Guilty. 

The Clerk: F. L. Richmond. 

Mr. Richmond: Not Guilty. 

Tlie Clerk : Rose Ros. 

Miss Ros: Not Guilty. 

The Clerk: Manuel Souza. 

Mr. Souza : Not Guilty. 

The Clerk: Nick Tate. 

Mr. Tate: Not Guilty. 

The Clerk: Genevieve Young. 

Miss Young : Not Guilty. 

The Clerk : Albert Zulaica. 

Mr. Zulaica: Not Guilty. 

The Chairman: I want to inform all of the De- 
fendants that they have a right to be represented 
at this trial by a member of this Union, and only 
by a member of this Union. If you have such a 
representative, please state his name and book num- 
ber for the record. 

Do you have anybody you want to represent you 
at this trial ? 

Mr. Anderson: We can't understand you. 

Voices : No. No. Explain yourself. 

The Chairman: I want to inform all of the De- 
fendants that they have a right to be represented 
at this trial by a member of this Union, and only 
by a member of this Union. 



930 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

Miss Norris: We cannot understand him. 

Mr. Howard: You have a right to be defended 
by a member of the CIO, if you will state his name 
and book number. 

Miss Norris: I can't understand him. 

Mr. Duarte: Mr. Chairman, may I ask that the 
Court Reporter read back the statement that the 
Chairman made"? 

(Record read.) 

Miss Norris: Thank you. 

The Chairman: The Prosecutor will now pro- 
ceed with the case. 

Mr. Howard: Mr. Chairman, may we present 
our statement now? We are all through with the 
business part of this trial, I guess. 

Mr. Duarte: We have no objection. 

The Chairman: It is up to the Prosecutor to 
call for the first witness. 

Mr. Duarte: We have no objection to your in- 
troducing a statement, if you wish to do so, on be- 
half of some of the people. 

Miss Norris: "We are appearing here only for 
the purpose of protesting against and taking ex- 
ception to the trial of whatever charges may have 
been preferred for the following reasons : 

'''I. We have never received a copy of the 
charges, if any, upon which this trial is to be held, 
as required by Section 7, Article XV of the Consti- 
tution and By-Laws. The first so-called notice sent 



N. L. R. B. et al 931 

Intervener's Exhibit No. 9 — Proceedings 
Before Wareiiouse Union — (Cont'd) 

out consisted only of a letter from the vice-j^resi- 

dent, stating that charges had been filed. No cojjy 

of the charges was enclosed. 

'"The next so-called notice was again a letter from 
the vice-president, which likewise did not enclose 
a copy of any charges. The only reference to the 
nature of any charges contained in the second letter 
was a paragraph which stated the nature of the 'is- 
sue' as a matter entirely different from that indi- 
cated in the previous letter. The second letter, like- 
wise, failed to specify the Section of the Consti- 
tution, Declaration of Principles, or By-Laws al- 
leged to have been violated. Not having seen the 
charges, we are unable to state whether the charges 
specify the Section alleged to have been violated. 
They are, therefore, invalid and void since they do 
not comply with Section 4, Article XV, of the Con- 
stitution and By-Laws. 

"2. We understand, and so state, that Section 
6, Article XV of the Constitution and By-Laws, 
requiring a Trial Committee to be selected at the 
next regular meeting following the filing of the 
charges, has not been complied with. 

"3. We maintain that these proceedings are 
wholly illegal and void for the further reason that 
they were not instituted, and are not being carried 
through, in good faith and are unfair and preju- 
dicial, in that only a few of the men who could be 
made the subject of similar alleged charges have 



932 Colgate-PalmoUve-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

been called to stand trial, and that this attempted 
trial is not in fact one upon the charges alleged to 
have been filed, but is being called for some other 
and unspecified reason, namely, to unfairly and il- 
Jegally discriminate against and persecute certain 
members of this union who have acted no differ- 
ently than the great majority of the other mem- 
bers of the union. 

"4. We hereby request that a copy of whatever 
charges may have been filed be sent to the accused, 
as required by the Constitution and By-Laws, that 
the trial thereon be held no sooner than ten days 
after the charges are mailed, that all the other pro- 
visions of the Constitution and By-Lav>^s having 
reference to these matters be complied with, and that 
the trial, if any, to be held on such charges be 
held in good faith, that all members who were 
guilty of the acts complained of be charged and 
brought to trial, and that discrimination, preju- 
dice, undemocratic dictatorship and illegality be 
eliminated from these proceedings. 

'"Until this is done, we protest against and take 
exception to the holding of a trial, and we decline 
and refuse to stand trial." 

Mr. Howard: For those of you who don't want 
to stand trial, don't think you should stand trial, 
I think we can be excused now, and those who want 
to remain for the trial may remain. 



A^ L. R. B. et al 933 

Intervener's Exhibit No. 9 — Proceedings 
Before AVarehouse Union — (Cont'd) 

Mr. Duarte: I would just like to ask one ques- 
tion, if I might. 

I would like to know the people that introduced 
this. I note that in the statement it says "I am," 
and then, in parentheses, "(we are)." 

What was the Sister's name? Kay what? 

The Clerk: Norris. 

Mr. Duarte: Kay Xorris. 

I would like to know whether Kay Norris was 
speaking for herself or for anyone else, because 
she read the statement in the plural sense when she 
said "we are." There is no signature attached to 
the document. 

Miss Norris: Well, "Chile," I think it was for 
all of us, I believe it is for all of us. I was just 
asked to read it. I believe it is for all of us. 

Mr. Howard: There are some of us who don't 
want to stand trial. If anyone here wants to stand 
trial, that is their own business, not mine. But, 
I for one am going to wait for further charges. 
I don't think I should discuss that any more right 
now. 

Mr. Duarte : Mr. Chairman, the Prosecution will 
prove that charges were sent, return receipts were 
received, and the Constitution lived up to. If the 
people who have not signed this statement do not 
wish to stand trial, they have the right to say they 
will not stand trial. But, I want to point out that 



934 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

under the Constitution, refusal to stand trial un- 
der Section 11 of Article XV reads : 

"If the accused fails to appear for trial 
without an excuse that satisfies the Trial Com- 
mittee, such failure to appear may be consid- 
ered by the Committee as a conclusive proof of 
guilt." 

That is the end of Section 11. 

Mr. Howard : We have appeared, but we do not 
mean to stand trial, ''Chile." 

Mr. Anderson: We have appeared. 

Mr. Duarte: If there is no objection, Mr. Chair- 
man, we will proceed with the trial. 

Miss Norris : I would like to hear what j^ou peo- 
ple have to say, but yet I don't feel that I want to 
stand this trial, because I am not guilty. I don't 
feel that I am. 

Mr. Duarte: I want to make two points, Mr. 
Chairman, (1) that Sister Norris, who just spoke, 
made a statement that appears in the record, and 
(2) the last paragraph of the statement reads: 
"Until this is done, I protest against and take ex- 
ception to the holding of a trial, and I decline and 
refuse to stand trial." 

I cannot for the life of me imagine anyone mak- 
ing a statement, saying "I refuse to stand trial," 
and acting as spokesman for a group of people who 
leave, while the person that read the statement re- 
mains. 



N, L. B. B. et at 935 

Intervener's Exhibit No. 9 — Proceedings 
Before Yfarehouse Union — (Cont'd) 
I suggest that if the Sister does not wish to stand 
trial, the Sister be excused. 

(Whereui^on, certain of the Defendants left 
the room.) 

Mr. Ashworth: I came down because I don't feel 
that I am guilty of the charges filed against me, 
and I would like to stand trial, myself. That is 
w^hat I came for. 

Mr. Duarte: Mr. Chairman, I want the record 
to show that an unsigned statement was read by 
Defendant Kay Norris, and that, following the state- 
ment, certain verbal statements were made. 

I want to emphasize once again for the record 
that the statement introduced is not signed by 
anyone who left the meeting. 

The Chairman: I believe it will be best for us 
to take a roll call of the people remaining. 

The Clerk: Would you stand up and give your 
name % 

Mr. Heppler: Martin Heppler. 

Mr. Hixon: Glen Hixon. 

Mr. Azevedo: Tommy Azevedo. 

Mr. Zulaica: Albert Zulaica. 

Mr. Souza: Manuel Souza. 

Mr. Periera: K. Periera. 

Mr. Ashworth : Robert Ashworth. 

Mr. Denkowski: Felix Denkowski. 

Mr. Barboni: Vincent Barboni. 

Mr. Rigo: Calixto Rigo. 



936 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

Mr. Lee: Alden Lee. 

Mr. Perucca: John Perucca. 

Mr. Munoz : Manuel Munoz. 

Miss Cerrato: Ann Cerrato. 

Miss Ros: Rose Ros. 

Miss Paige: Ina Paige. 

Mr. Tate: Nick Tate. 

The Chairman : Would you people mind moving 

up closer'? It is easier for everybody to understand. 

The Prosecutor will now call the first witness. 

Mr. Duarte: I will call Emma Stanley. 



EMMA STANLEY 

called as a witness by and on behalf of the Plain- 
tiff, was examined and testified as follows: 

Direct Examination 

By Mr. Duarte: 

Q. Give your name. 

A. Emma Stanley, E-m-m-a S-t-a-n-1-e-y. 

Q. How old are you? A. 35. 

Q. What is your occupation? 

A. Office worker. 

Q. Where do you work? 

A. Warehouse Union, Local 6, I.L.W.U., Oak- 
land Division. 



N. L. R. B. et at 937 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Emma Stanley.) 

Q. Did you mail the original charges that were 
sent to the 26 people who are defendants here? 

A. Yes, I did. 

Q. Do you recognize this list of names? 

A. Yes, I do. 

Q. When did you mail them? 

A. I have the records here. May I refer to 
them? (After consulting documents) August 30th 
and September 1st. There were two different dates 
on those letters. 

Q. How did you mail them? 

A. By registered mail. 

Q. To whom did you mail them? 

A. To the parties involved, suspended members. 

Q. Will you read off their names? 

A. Yes. Henry Hellbaum, Calixto Rigo, Tom- 
my Azevedo, Manuel Munoz, Robert Ashworth. 

Mr. Ashworth: The first charges I got was 
through a registered letter. They mailed all the 
rest of them, I believe, to the wrong address. The 
first one I got was last week, and I went to the Post 
Office and picked it up. 

The Witness : I have the returns. 

A. (Continuing) Nick Tate, Manuel Souza^ 
Bill Howard, Felix Denkowski, Manuel Alegre, K. 
Periera, Vincent Barboni, Glen Hixon, Alden Lee^ 
Ross Ros, Albert Zulaica, Terry Anderson, Gene- 
vieve Young, Ina M. Paige, Kay Norris, Ann 



938 C olgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Emma Stanley.) 

Cerrato, Henry Giannarelli, Ophelia Eeyes, Martin 

Heppler, F. L. Richmond. 

Q. Did you receive return receipts'? 

A. Yes, I did. 

Q. From whom? 

A. May I say that — every one with the excep- 
tion of three. 

Q. Will you name the exceptions'? 

A. Albert Zulaica, Robert Ashworth and Henry 
Hellbaum. 

Q. Did you also mail out the Bills of Particu- 
lars? A. Yes, I did. 

Q. When? A. December 3rd. 

Q. How did you mail them'? 

A. Registered mail. 

Q. To whom? 

A. Manuel Alegre, Terry Anderson, Robert 
Ashworth, Tommy Azevedo, Vincent Barboni, Ann 
Cerrato, Felix Denkowski, Henry Giannarelli, 
Henry Hellbaum, Martin Heppler, Glen Hixon, 
William Howard, Alden Lee, Manuel Munoz, Kay 
Norris, Ina Paige, K. Periera, John Perucca, Mike 
Ramierez, Calixto Rigo, Ophelia Reyes, F. L. Rich- 
mond, Rose Ros, Manuel Souza, Nick Tate, Genieve 
Young, Albert Zulaica. 

Q. Did you receive return receipts for these? 

A. Yes, I did. 

Q. From whom? 

A. I will have to read them. Kay Norris, K. 



N. L. B. B. et al 939 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Emma Stanley.) 

Periera, Thomas Azevedo, Manuel Munoz, Nick 

Tate, Felix Denl^owski, Vincent Barboni. 

There is one I can't read. 

Ina M. PaigCj Alden Lee, Henry Giannarelli, Ann 
Cerrato, John Perucca, Henry Hellbaum, F. L. 
Richmond, Manuel Souza, Ophelia Reyes, William 
Howard, Glen Hixon, Albert Zulaica, Calixto Rigo, 
Mike Ramierez, Rose Ros, Martin Heppler. 

Q. Were there any you did not receive return 
receipts from? 

A. I did not check this. There was a return on 
this letter from Calixto Rigo, Genevieve Young and 
Terry Anderson. Calixto Rigo sent a letter with 
his return. Genevieve Young's was returned. It 
does not say why. 

"Unclaimed." Excuse me. 

Q. May I have a copy of the original charges? 

A. You are referring to the original ones? 

Mr. Duarte: Yes. 

(Witness hands documents to counsel.) 

Mr. Duarte: Mr. Chairman, as Exhibit A I will 
introduce the original charges with the return re- 
ceipts. 

The Chairman: They will be received in evi- 
dence and marked Exhibit A. 

(Copies of original charges and return re- 
ceipts were received in evidence and marked 
Exhibit A.) 



942 C olgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

Direct Examination 
By Mr. Duarte: 

Q. State your name, please. 

A. My name is Louis Gonick. 

Q. You are an officer of Local 6? 

A. Yes. I am the Business Agent for I.L.W.U., 
Local 6, the Oakland unit. 

Q. Are you familiar with the Union's position 
in regard to strikes in war time? 

A. Yes, I am. 

Q. What was the position of the Union? 

A. The position of the Union was that there 
would be no strikes during the war for any reason 
whatsoever. The position further was that we were 
all out for production to win the war. Penalties 
were imposed for absenteeism. Any group of work- 
ers outside of our Union that went out on strike 
were severely and publicly censored, because we 
realized that if any group of workers, particularly 
in our Union, walked out, it would set a precedent 
for a great many others in our Union in plants 
that had accumulated grievances during the war, 
which had to wait. 

Q. What was the record of the Union locally in 
regard to strikes during the war? 

A. The Union locally had a 100 per cent record 
as far as strikes were concerned, that is, up to the 
time that Colgate-Palmolive-Peet walked out. 



N. L, R. B. et al 943 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

Q. What was the record of the Union nationally ? 

A. It was the same. There were no strikes 

whatsoever. This is the only strike on our record. 

Q. I show you a page out of a newspaper, "The 

Dispatcher," dated July 13, 1945, and ask you if 

you recognize that as an official newspaper of the 

I.L.W.U. A. Yes, that is correct. 

Q. On that page is a resolution dealing with the 
war effort. I ask that you read Point 1 in the 
ujDper lefthand corner of that particular page. 
A. ' ' We therefore resolve : 

"(1) That we reaffirm our war time No- 
Strike pledge. The war in the Pacific comes 
first. The fighting men must receive their wea- 
pons and supplies without stint, without in- 
terruption or delays of any kind." 

Q. I ask you to read now the section in the cen- 
ter of the page, the statement. Will you read the 
heading, please? 

A. It is headed, "A Pledge to President Harry 
S. Trmnan and the Nation." 

"On behalf of the entire membership of the 
International Longshoremen's & Warehouse- 
men's Union, we renew and give to President 
Harry S. Truman and the Nation our solemn 
pledge that until the war is ended with the un- 
conditional surrender of Japan we will not 
strike, stop work, or cease or slow production 
for any reason whatsoever. 



944 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

*'We reiterate that this is an unconditional 
pledge, given in the knowledge that our first 
duty is to our Nation and that, despite provo- 
cation, we must take no action that will imperil 
our Nation or cause the prolongation of the 
war or cause the unnecesary loss of so much 
as one Allied life. 

"We further make the positive pledge that 
we will do everything in our power to shorten 
the war by lending ourselves to intelligent solu- 
tion of the manifold manpower problems and 
to the development of all possible means to 
speed production." 

This was adopted unanimously on June 29, 1945, 
by the I.L.W.U. Executive Board. 

Q. Following the meeting of the International 
Executive Board, was a Resolution No. 1, headed 
"War Effort," concurred in by the "Oakland unit 
of Local 6? 

A. That's correct. It was, on more than one 
occasion. 

Q. Did a strike take place at Colgate-Palmolive- 
Peet on August 1, 1945? A. Yes, it did. 

Q. How long did it last? 

A. Approximately three days. 

Q. Was that strike authorized by the Union? 

A. It was not. 

Q. Did the Union attempt to get the strikers 
back to work? 



N. L. R. B. et al 945 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

A. Yes, they did. On the day of the strike we 
publicized a meeting outside of the gate, at which 
some of the people that were on strike attended, 
and after that meeting they returned back to work. 

We also attempted to get the people on strike to 
come to our meeting, to come to the hall and ex- 
plain their position so we could try to influence 
them. None of them showed up. 

At their own meetings we attempted to gain ad- 
mittance by sending our Local President to the 
meeting, and also the International Secretary- 
Treasurer. The}^ were not permitted entrance into 
the meeting, and they were kept outside. 

The Conciliation Department also w^as in on the 
scene and informed us that they, too, tried to get 
admittance, but were not permitted into the meeting. 

Q. Were there any war materials then being 
produced at Peet's'? A. Yes. 

Q. What were they? A. Glycerine. 

Q. Was the production of this glycerine inter- 
rupted by the strike *? 

A. The glycerine plant was completely shut 
down. The gly-cerine went out to the war effort. 

Q. Did the United States Army and Navy in- 
terfere in any way? 

A. They were in on the picture, and called the 
Union to try to get a settlement of the strike. 

Q. Do you mean by "settlement," get the people 
back to work? 



946 Colgate-PalmoUve-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

A. Get the people back to work, that's right. 

Q. Was the Union notified that there was going 
to be a strike at Peet's? A. No. 

Q. When the strike was called, did anyone 
notify the Union that a strike had been called? 

A. No, there was no notification whatsoever. 

Mr. Duarte: Mr. Chairman, I would like to in- 
troduce in evidence page 8 of " The Dispatcher, ' ' the 
official newspaper of the International Longshore- 
men's & Warehousemen's Union, as Exhibit F. 

The Chairman: It will be received in evidence 
and marked Exhibit F. 

(Copy of page referred to from "The Dis- 
patcher," dated July 13, 1945, was received in 
evidence and marked Exhibit F.) 

Mr. Duarte: Are there any questions'? 

The Chairman : I wonder if this group of people 
from Palmolive-Peet have somebody they want to 
select as chairman for the defense of their own 
case? 

Does anyone want to come up and cross examine 
the witness? 

Mr. Heppler : I would like to ask him a question. 

Cross Examination 

By Mr. Heppler: 

Q. How many, approximately, went out on that 
strike ? 



N. L. B. B. et at 947 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

Mr. Duarte: Mr. Chairman, I object to this. 

Mr. Heppler: I just wanted to ask a question. 

Mr. Duarte: The objection I raise is that if we 
are going to call witnesses — and I intend to call a 
few — and each individual person here rises to ask 
questions, we will be here until next Wednesday 
sometime, or adjourn and meet nightly. 

I would suggest that one person represent the 
group and ask any questions and conduct any cross 
examination you see fit. 

Mr. Denkowski: I don't want to ask anyone 
any questions, but you made a statement that is not 
correct. 

Mr. Duarte: I want to raise an objection again, 
Mr. Chairman. The group should get someone to 
represent them. I don't want it to seem that I am 
trying to cut anybody off. I have no objection to 
anybody asking questions if there is no cross fire. 
Under those circumstances, I have no objection to 
anyone asking any particular question. 

The Chairman: That is all right. 

Mr. Heppler: I would like to ask a question. 

Q. (By Mr. Heppler) : Approximately how 
many went out on this strike? 

A. Oh, I don't know the exact number. I 
imagine it was well over half the plant. 

Mr. Souza: 223. 

Mr. Perucca: I would like to ask a question. 

Q. (By Mr. Perrucca) : I was told that there 



948 Colgate-Pahnolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

was another strike or work stoppage during the 

war in a dried fruit plant up in San Jose, to win a 

point of some kind. Is that true? I think Lynden 

called them out, or something like that. Is that 

right ? 

A. I don't know. I believe that was after hos- 
tilities had ceased. 

Mr. Perucca: I don't remember the date, but I 
was told that work was called off during the war 
up there, to win a certain point of some kind. 

The Chairman: Does anyone else want to ask 
any questions? 

Q. (By Mr. Denkowski) : You said we went 
on strike for three days. Did we go on strike for 
three days? 

A. Well, as I recall it, approximately three days. 
It may have been two and a half days, or between 
two and a half and three. 

Mr. Denkowski: Well, it couldn't be three, be- 
cause I was called — I didn't know a thing about it — 
I was called at 11:00 o'clock, and the foreman told 
me to shut down, because I was blowing soap — to 
shut down at noon, when we went out at noon, so it 
must be two and a half days. 

The Witness: Well, it may have been two and 
a half days. I said approximately three days. I 
remember there were three days in which the work- 
ers had walked out. I imagine that even after they 



A^. L. R. B. et al 949 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

came back it took a certain number of hours to start 

things going, and start the glycerine plant going. 

Mr. Denkowski: Well, the glycerine plant was 
going right along. 

Mr. Duarte: Mr. Chairman, I object to this 
running dialogue that goes on. I think a question 
should be asked, because we could go on and ask 
Gonick a million questions, and build something up. 

Mr. Frietas: Brother Chairman, may I ask this 
question ? 

Why did these people go out on strike? That is 
what I want to know. 

Mr. Ashworth: Brother Chairman, can I speak 
for myself? 

Mr. Frietas: Go ahead. 

Mr. Ashworth: I think the biggest majority of 
the kids sitting here, including myself, didn't under- 
stand just what it was all about. The meeting was 
called. I think approximately 300 people attended 
that meeting. I, for one, got up on the floor. I 
told the kids, "Go back to work." 

For two days, I think, we were out, and we all 
went back. Maybe a few stayed out. I wouldn't 
say that every one of them went back. 

Then the kids in my department wanted me as a 
temporary Shop Steward. The other one was off 
the job. I think Mr. Gonick here can verify my 
statement. Once there isn't a Shop Steward in 
some of those departments, they kind of go haywire. 



950 Colgate-PahnoUve-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

While I am talking, I might say something else. 

For a year and a half around there, Avhen we held 
meetings with the Company, there used to be a 
bulletin of the minutes put on the board at all times. 
Every member of our Union could go around and 
read them, see what the meeting was about. 

I will have to make this statement, that for the 
last year and a half out there, there haven't been 
any bulletins on the board. No one knew what the 
meetings were about, what they were called for. If 
you came out there, the only time we knew you 
w^ere there was when you came out to collect dues, 
and we handed them to you. 

Mr. Duarte: Mr. Chairman, I want to make 
one objection here, the same objection I will keep 
making. 

The issue before the Committee is not, AVhy ? but, 
''Was there a strike?" That is what we are try- 
ing to prove. Was there or was there not a strike? 

Mr. Ashworth: That is what I am asking. You 
interrupted there, but I will start over again. 

That went on for a year and a half. I don't think 
any of the kids sitting in here actually knew what 
the score was. Maybe there was a few them, but 
they was yanked off their jobs here, including my- 
self. I am sure I did not know what the score was, 
or what it was for. But, I do know that when any- 
thing come up, and we asked for a Business Agent 
to come out there, we was told — I won't mention 



A^ L. R. B. et al 951 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

any names — me, for one, I know I was told a half 

a dozen times that the Business Agent wasn't in, 

couldn't be gotten ahold of. 

Mr. Duarte: Mr. Chairman, I want to object 
again on the basis that this kind of discussion re- 
lates to the proof that was given in another trial 
that was held. Those records can be examined by 
the Committee. The thing we have before us here 
is not. What was wrong at Peet's? The issue we 
have here is whether or not these people went on 
strike. They are charged with going on strike. 
Period. That is all. Now, did they or did they not 
walk out on strike? That is the only question we 
have to discuss here. 

The Chairman: That is right. 

Mr. Ashworth: Brother Chairman, may I sug- 
gest something? 

If we are charged with walking out on strike, how 
about the other 200 that walked out at the same 
time? 

Mr. Duarte: I want to make a point again, Mr. 
Chairman, that these people are charged with going 
out on strike. 

Mr. Frietas: During the war. 

Mr. Duarte: During the war. If three people, 
three distinct people, murder their grandmother, 
and two of them are charged with murder and the 
third is not, that does not give the two the right to 



952 C olgate-P almolive-P eet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

say, "I am not guilty because you are not trying 

a third man." 

What we have here to determine is whether or 
not these people were implicated in a strike. I will 
keep saying that that is the only charge against 
them, and that is the only charge we have here. , 

I think the answer would be, whether or not these 
people went out on strike. I will object to anyone 
getting UX3 and making long statements about the 
histor}^ of negotiations, or anything else. I think 
we should have an answer on whether or not there 
was a strike at Peet 's, and wlTether or not they went 
out on strike at Peet's for two and a half days. 

Mr. Ashworth: Brother Duarte, I believe I am 
going to answer the question you just asked, for 
myself, personally. If that is what you call "walk- 
ing out on a strike," yes, I attended the meeting 
personally, myself. I did. But, I did go back to 
work at the same time the rest of them did, and I 
never went off the job afterwards. I tried to see 
that everything went on just as it had been for 
.years. In fact, I helped organize the place in the 
first place, so I understood the Union very well as 
far as keeping things in line. I did not do any- 
thing against the contract at Colgate's. 

As far as trying to be a temporary Shop Steward, 
if any of the kids had any beef, I went to the boss 
with it and seen that they stood up to the I.L.W.U. 
contract; not any other. 



N. L. R. B. et al 953 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

I was yanked off the job one morning when I 
come in to work thirty, thirty-five days later, handed 
my suspension papers, and that is all I knew. That 
is all I have to say. 

Mr. Azevedo: His question was. Why did we 
go out on a strike at Colgate-Palmolive-Peet's? 

Is that right? 

Mr. Duarte: The question I asked, and I will 
ask the Chairman to make a ruling on it, is : 

Did you or did you not go on strike ? 

Mr. Azevedo: The question was. Why did we 
go out on a strike*? 

Mr. Duarte: I say again, that question, that 
was asked by a member of the Board, is out of 
order, because we are here to determine. Was there 
a strike at Palmolive-Peet's? Did the people here 
who are defendants walk out on that strike? Were 
they involved in that strike? That is the question 
w^e have to decide here. That is the only question 
we are here to decide. That is the only charge the 
people have against them. 

I ask the Chairman to make a ruling that the 
discussion be confined to. Was there a strike ? Were 
these people involved in a strike? 

The Chairman: Very well. I make that ruling. 
Everything that comes up from now^ on has to per- 
tain to whether you went out on a strike or you 
did not. 



954 C olgate-Pahnolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Louis Gonick.) 

Are there any more that want to question the 
witness on the stand"? 

Mr. Perucca: There is a fellow here who was 
on a vacation at that time. 

Mr. Eigo: I w^asn't on the jol) when the strike 
took place. I was ten days away. I only read about 
the strike in the papers. When I came back the 
strike was over. The strike w^as called the first of 
August. 

Mr. Duarte: What day did you go on your 
vacation ? 

Mr. Rigo: Julv 23rd. 

The Clerk: He might refer to Exhibit E. 

Mr. Duarte: It is covered under Exhibit E. 

The Clerk: I would like to present this to you. 

In the case of these two names, the charges were 
changed. 

Mr. Duarte: Before we go into this, if you are 
through with Louis, we can excuse him, and then 
have each one of the people here present their argu- 
ments, if they like. 

Are there any more questions anyone wants to 
ask Louis'? 

(No response.) 

(Witness excused.) 

Mr. Duarte: Everybody will have a chance to 
speak their piece. 



N. L. R. B. et at 955 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

Under Exhibit E, the letter states: 

"Correcting the Bill of Particulars fur- 
nished you by letter dated December 3, 1945, 
you are hereby notified that the sole issue in 
your trial will be your fomenting and encour- 
aging a war time strike at Colgate Palm-Olive 
Peet Company in violation of the I.L.W.U.'s 
No-Strike pledge." 

The same applies to Manuel Alegre. 

Mr. Rigo: I have worked at Peet's for eighteen 
years, and I have not heard at all about a strike 
going on there. They never talked about the strike 
at all. I believe when these people went out for 
meetings, as they say, it was because the officials 
of the Union pulled out those nine men. That is 
the only reason. Therefore, I don't see how I could 
promote or encourage a strike. 

Mr. Duarte : I v/ould like to suggest, Mr. Chair- 
man, that any of the Defendants that want to take 
the stand can do so on their own, but I would like 
to call a couple of more witnesses now. 

I would like to suggest, as an order of pro- 
cedure, that I be allowed to call the witnesses, and 
then any of the Defendants that wish to take the 
stand and make a statement on their own behalf, 
or correct any of the things that the witnesses may 
state, they will then be given the right to do that. 
I think that will be an orderly procedure. I will 



956 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

present the witnesses for the prosecution, and then 

allow any and all of the Defendants to take the 

stand here and make a statement in their own 

behalf. 

At this time I would like to call Brother Hack 

Gleichman. 



HACK GLEICHMAN 

called as a witness on behalf of the Plaintiff, having 
been first duly sworn, was examined and testified 
as follows: 

Direct Examination 

The Witness: Hack Gleichman, G-1-e-i-c-h-m-a-n, 
H-a-c-k, Field Representative of Local 6. 

Q. (By Mr. Duarte) : Your book number? 

A. 0-3499. 

Q. I would like to ask you, Brother Gleichman, 
as a Field Representative of Local 6, what are your 
duties 1 

A. My duties are to assist the Business Agent 
in whatever work is necessary for me to keep the 
day to day work running smoothly, to work with 
the Shop Stewards in the various plants and to 
carry out the program of the Union generally. 

Q. Were you working in that capacity on or 
about August Ist? A. I was. 



N. L. E. B. et at 957 

Intervener's Exhibit No. 9 — Proceedings 
Before V/arehouse Union — (Cont'd) 

(Testimony of Hack Gleiehman.) 

Q. Did a stoppage of work or a strike occur 
at Colgate Palm-Olive Peet's on August 1st? 

A. It did. 

Q. Can you tell us what you know of that par- 
ticular situation that day, what time the strike 
occurred, how many people were involved, et 
cetera *? 

A. Well, as I recall, those that went out on 
strike did not return after the lunch hour on that 
date. 

Q. Did you attend a meeting at 4:00 o'clock on 
Saturday at the gates of the Palm-Olive Peet 
Company? A. I did. 

Q. Did you speak at that meeting? 

A. I spoke at that meeting. 

Q. Did any of the i^eople who walked out at 
noon that day go hack to w^ork the following day? 

A. Yes, they did. 

Q. Did you see any of the Defendants go out 
on strike that day, or urge any of the workers to 
join the strike? 

A. Well, I saw all the Defendants in my activi- 
ties, because I had been working at the plant 
assisting Brother Gonick for many weeks before 
that time, because of the new agreement coming 
up, and various Grievance Committee meetings, et 
cetera. So, I saw all of the defendants. 

Q. Did you discuss the bad feature of striking 



958 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Hack Gleichman.) 

in war time with any of the people involved, in 

a group or singly? 

A. Well, all through this period I had many 
discussions with groups and with individuals, and 
especially several of us — when I say "several of 
us", I mean some of the Shop Stewards and 
myself, sometimes together and sometimes sepa- 
rately, would attempt to discourage such brothers 
as Alegre and Calixto from participating and en- 
couraging this sort of activity. 

Q; Do you know Rose Eos'? A. I do. 

Q. Genevieve Young"? A. I do. 

Q. Ina Paige'? A. I do. 

Q. Were they involved in this strike? 

A. They were. 

Mr. Duarte: That is all. 

Miss Paige: May I ask a question now? 

Mr. Duarte: Give your name to the Reporter. 

Miss Paige: Ina Paige. 

Cross Examination 

By Miss Paige: 

Q. I would just like him to explain how I was 
suspended, what happened that day down there, 
if he remembers me, Ina Mae Paige. I am the one 
who did not have my book when I entered the plant. 
If he remembers, I would like to have him tell just 
how it happened. 



N. L. R. B. et al 959 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

A. I do remember, Mr. Chairman, that this 
was one of the sisters that participated in the 
strike. She was one of many that we eA'Cntnally had 
to keep out for similar activity. 

Q. What did I say that day, and why was I 
kept out? A. I don't remember that. 

Miss Paige: I didn't have any book. They told 
me to return home and get my book, and then 
I could go to work. I did so, and when I returned 
they would not let me go in the plant. That is the 
only thing they could have against me at all. It 
may be out of order, but I would just like for them 
to know how that happened. This is the first time 
I have ever belonged to a union in my life, and that 
is the treatment I got. 

Mr. Duarte: I don't want to make another ob- 
jection, but everyone will have an opportunity to 
come up here and speak. 

Miss Paige: That is all right, but I wanted to 
say that, since my name came up. 
(Witness excused.) 

Mr. Duarte : I would like to call George Squires. 



GEORGE SQUIRES 

called as a witness on behalf of the Plaintiff, having 
been first duly sworn, was examined and testified 
as follows: 

Direct Examination 
By Mr. Duarte: 
Q. State your name. A. George Squires. 



960 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of George Squires.) 

Q. Book number? A. Book No. 0-2768. 

Q. Were you employed at Colgate Palm-Olive 
Peet plant in Berkeley on August 1, 1945? 

A. I was. 

Q. Did a strike occur on that date? 

A. That's right. 

Q. Did you see any of the Defendants walk out 
on strike that day? A. I did. 

Q. Did you see any Defendants urge anyone to 
join the strike? A. I did. 

Q. Can you give us their names? I have a list. 
I will read them off and ask you if you know them. 
Kay Norris? A. That's correct. 

Q. Ann Cerrato? A. Correct. 

Q. Henry Giannarelli? A. Correct. 

Q. Manuel Souza? A. Correct. 

Q. Mike Ramierez? A. Correct. 

Q. Martin Heppler? A. Correct. 

Q. Bill Howard? A. Correct. 

Q. Glen Hixon? A. Correct. 

Q. Alden Lee? A, Correct. 

Q. Vincent Barboni? A. Correct. 

Q. Felix Denkowski? A. Correct. 

Q. F. L. Richmond? A. Correct. 

Q. Harry Anderson? A. Correct. 

Q. John Perucca? A. Correct. 

Q. Nick Tate? A. Correct. 

Q. Robert Ashworth? A. Correct. 

Q. Manuel Munoz? A. Correct. 



iV. L, R. B. et al 961 

Intervener's Exhibit No. 9 — Proceedings 

Before Warehouse Union — (Cont'd) 

(Testimony of George Squires.) 

Q. Tommy Azevedo? A. Correct. 

Q. Henry Hellbaum? A. Correct. 

Q. All of these people, you state, Avere part of 
this strike and walked out on strike at that certain 
hour on August 1st? A. That's correct. 

Mr. Perucca: I would like to ask a question 
there. You asked if he saw us talking somebody 
else into going out on strike. 

Mr. Duarte : I have not asked that question yet. 

Mr. Perucca : I thought you asked that question. 

Mr. Duarte: I broke it up in two parts. Let me 
finish questioning the witness, and then we can go 
into it. We don't want this haranguing, if we can 
help it. 

Q. (By Mr. Duarte) : These people I have just 
named went out on strike that day, left their jobs? 

A. Correct. 

Q. Did you talk to any group of them or any 
individual in this particular group? A. No. 

Q. Did you see them urging anyone to join the 
strike ? 

A. Only one that I know of, and that was in a 
department I work in. 

Q. Who was that? A. Terry Anderson. 

Q. In what way? 

A. Well, he was intimidating, telling some of the 
other brothers that they would see how this thing 
would come out. 

Q. Was he asking them to come off the job? 



962 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of George Squires.) 

A. That's correct. 

Q. Was Manuel Alegre or Calixto Rigo involved 
in this strike*? 

A. Not to my knowledge. 

Q. Were they involved in the strike after the 
strike took place ■? I mean, if they were not there 
that day, did they become a part of the strike? 

A. No. They were both on vacations. 

Mr. Duarte: That is all. 
(Witness excused.) 

Mr. Duarte: I will call Chuck Grube. 



CHARLES GRUBE 

called as a witness on behalf of the Plaintiff, having 
been first duly sworn, was examined and testified 
as follows: 

Direct Examination 

By Mr. Duarte: 

Q. State your name. 

A. Charles Grube. Book No. 0-1869. 

Q. Were you employed at Colgate Palm-Olive 
Peet's on August 1, 1945? A. Yes, I was. 

Q. Did a strike occur there? 

A. It did. 

Q. What time? A. 12:00 o'clock sharp. 



A^. L. E. B. et al 963 

Intervener's Exhibit No. 9 — Proceedings 

Before Warehouse Union — (Cont'd) 

(Testimony of Charles Grube.) 

Q. Did you see any of the Defendants here leave 
the job? A. Only one. 

Q. Which one is that? 

A. Katino Periera. 

Q. Did you talk to her? 

A. No, I didn't talk to him. 

Q. Him, I mean. I am sorry. 

Did you see anyone urging anyone to join the 
strike? A. Not in this group, no. 

Q. Did you at any time talk to any of the 
Defendants here, or those who are not here? Did 
you at any time talk to any of them after the 
strike occurred, about coming back to work? 

A. No. 

Q. Did the Union make an attempt to get these 
people back to work? 

A. They did. They went up on the corners and 
talked to them. 

Mr. Duarte: That is all. 
(Witness excused.) 

The Chairman: Will the Prosecutor call the 
next witness? 

Mr. Duarte: At this time I would like to bring 
back the witnesses and ask one question. 

I would like to first recall Gleichman, then Grube 
and Squires. 



964 C olgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

HACK GLEICHMAN 

recalled as a witness on behalf of the Plaintiff, 
having been previously duly sworn, was examined 
and testified further as follows: 

Direct Examination 

By Mr. Duarte: 

Q. To your knowledge, were these Defendants 
involved in the strike at Peet'sf 
A. They were. 
Mr. Duarte: That is all. 
(Witness excused.) 



CHARLES GRUBE 

recalled as a witness on behalf of the Plaintiff, 
having been previously duly sworn, was examined 
and testified further as follows: 

Direct Examination 

By Mr. Duarte: 

Q. To your knowledge, were the Defendants 
charged here involved in the strike at Peet's? 
A. Yes. 

(Witness excused.) 



N. L. R. B. et al 965 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

GEORGE SQUIRES 

recalled as a witness on behalf of the Plaintiff, 
having been previously duly sworn, was examined 
and testified further as follows: 

Direct Examination 

By Mr. Duarte : 

Q. To your knowledge were the Defendants here 
involved in a strike at Peet's? 
A. They were. 

(Witness excused.) 

Mr. Duarte: I would like to call Charles 
Leacock. 



CHARLES LEACOCK 

a witness called by and on behalf of the Plaintiff, 
having been first duly sworn, was examined and 
testified as follows: 

Direct Examination 

By Mr. Duarte: 

Q. Will you state your name? 
A. Charles Leacock. 
Q. Your book number? A. 0-216. 

Q. Were you employed at Colgate Palm-Olive 
Peet's on August 1, 1945? A. Yes, sir. 

Q. Did a strike take place there? 



966 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Charles Leacock.) 

A. Yes, sir. 

Q. What time? A. 12:00 noon. 

Q. Did you see any of the Defendants leave 
their jobs'? A. Yes. 

Q. Were the Defendants here present and those 
not present, to the best of your knowledge, involved 
in a strike at Peet's"? A. Yes, sir. 

Q. Did the Union make any attempt to get these 
people back to work after the strike occurred *? 

A. They did. 

Q. Can you tell us anything about if? 

A. Well, in my own words: I went to the 
meeting that day. I got there around about 12:45. 
I attended the meeting, and from what I heard, 
which I was one of them at the time, they wanted 
to change affiliations. I think it was the next day 
Local 1-6 representatives came out, and we had a 
meeting at the plant. 

Q. Let me ask you something before you go 
any further. We are not interested in the question 
of cause. We are interested in the question of what 
happened. We want you to start from the time there 
was a strike. 

There have been certain statements made on 
causes. One statement was made that it was because 
the Business Agents were not there. The question 
of causes is not before the Board. It is a question 
of. Was there a strike or wasn't there a strike? 

A. Oh, yes, there was. 



N. L. R. B. et at 967 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Charles Leacock.) 

Q. Now, go on from there. 

A. The strike lasted two days and one-half. We 
went back to work after the two days and one-half, 
after we heard what the executives from the Union 
had to say. I for one went to the Hall and I tried 
to urge these people to go back to work. I was 
interrupted several times, because they did not 
care to hear what I had to say, and they went on 
from then. 

Q. How long have you worked at Peet's? 

A. About four years and a half. 

Q. Do you work day shift or night shift? 

A. Night shift. 

Q. Were any of the Defendants in here on the 
night shift ? 

A. Some of them, alternatively. 

Q. If a strike occurred at 12:00 o'clock noon, 
what time does the night shift go to work'? 

A. On the graveyard, 11:00 o'clock. 

Q. Can you explain to me how a man who goes 
to work at 11:00 o'clock at night becomes a part 
of a strike that occurs at 12 :00 o 'clock in the after- 
noon ? 

A. Well, in my common language, the only way 
I can explain that is if he tried to help contribute 
to the prolonging of that strike. 

Mr. Duarte: That is all. 
(Witness excused.) 

Mr. Duarte: Mr. Chairman, I would like to ask 



968 C olgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

for about a 5-minute recess before we go on, if 

there is no objection. 

The Chairman: We will take a recess of 5 

minutes. 

(Short recess.) 

Mr. Duarte: Mr. Chairman, I would like to 
apologize for one omission. That was that before 
I questioned Miss Stanley, she had not been sworn 
in. If there is no objection, we will stixDulate to the 
fact that she is what she says she is. 

The Chairman: Is there any ol)jection? 

Voices: No. No objection. 

Mr. Hixon: It has been pointed out that w^e 
were off work for two and a half days. I think the 
majority of us here have agreed to that, that 
we 

The Chairman: Excuse me. Before you go any 
further, are you one of the Defendants? 

Mr. Hixon: Yes. I sure am. 

The Chairman: You will have to take the oath, 
like the rest of them. 

Mr. Hixon: I was just getting this thing over 
in a hurry. 



N. L. R. B. et al 969 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

GLEN HIXON 

a witness called on behalf of the Defendants, liavin,^ 
been first duly sworn, was examined and testified 
as follows: 

Direct Examination 

The Witness: We have talked it over amongst 
us, and it has been pointed out that we participated 
in this strike, and if that is what you will charge 
us with, and if it will help things out an}^ more, 
we will plead guilty on that charge of participating 
in that strike. 

Mr. Perucca: I don't plead guilty to the 
charges, because according to what Gonick says, he 
says any group participating in the strike will be 
censored as a group, and a lot more than 28 people 
13articipated in that thing. I will agree that I 
walked out with, the rest of them. 

Mr. Silva: Mr. Chairman, if he knows of any 
other members who walked out on the strike, 
charges will be filed against them and they will be 
brought in. 

Mr. Perucca: There were 200 of them. 

Mr. Duarte: I will object to this, because under 
the procedure, the people who are here and those 
that left who stated they would not stand trial, 
were charged under the Constitution with being in 
a strike. The brother here states that he was in- 
volved in that strike. That is v^hat we are here 
to prove, whether or not you were involved in a 
strike. 



970 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Glen Hixon.) 

The Witness: I agree. The morning we was 
there, that morning, that is what I would plead 
guilty to, because I did not take part in agitating 
the strike, but I will admit I walked off the job 
with the rest of them, and I am willing to plead 
guilty, and I think the majority of them — they 
asked me to speak for them — I think they will plead 
guilty to the charge. 

Mr. Duarte : Mr. Chairman, in order to expedite 
the proceedings, I would like to have each one take 
the stand and make a statement as to whether or 
not they are guilty of this charge or not guilty of 
the charge. 

The Witness: That is all right. I just thought 
maybe if we could plead as a group, it would just 
help the thing out. 

Mr. Duarte: Are you suggesting that we ask 
each individual one here whether or not they plead 
guilty to the one charge as to whether or not they 
went out on strike? Because, a lot of people have 
gone. 

The Witness: Yes, sir, I do. 

Mr. Duarte: And your name is 

The Witness: Glen Hixon. 

Mr. Duarte: I would like to suggest that the 
Clerk read the roll and have each Defendant stand 
up and state whether or not they will plead guilty 
to the charge of l)eing involved in this stoppage 
of work. 

The Chairman: We have no objection to that» 
(Witness excused.) 



N. L. R. B. et at 971 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

The Clerk: We already have Mr. Hixon, is that 
correct ? 

Mr. Duarte: Yes. 

The Clerk: Martin Heppler? 

Mr. Heppler: I plead guilty to going out on 
the two and a half day's strike. 

The Clerk: If you don't mind, I only have the 
last names. Is it all right to do it that way? 

Mr. Duarte: Yes. 

The Clerk: Azevedo. 

Mr. Azevedo : I don 't know whether I was guilty 
or not, because when we walked out I didn't know 
we were going out on strike. The reason I walked 
out was, all our Shop Stewards were suspended 
from the Union, put out of the plant. 

Mr. Duarte: I would like to ask this, Tom. The 
question we have to decide here tonight is whether 
or not anyone left that job, struck that jol) at 
12:00 o'clock noon on August 1st, and left the job. 
That is what we are trying to decide here. 

Were you or were you not involved in the strike? 

Mr. Azevedo: Yes. I walked off the job for a 
reason. 

Mr. Duarte: Do you plead guilty or not guilty 
to the charge? 

Mr. Azevedo: All right. I am guilty. 

The Clerk: Zulaica. 

Mr. Zulaica: I plead guilty. 

The Clerk: Souza. 

Mr. Souza: Yes. 



972 Colgate-Pahnolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

The Clerk: Manuel Souza? 

Mr. Souza: Yes. 

The Chairman: Guilty or not guilty? 

Mr. Souza: Yes. I want to talk about the 
stooges. Everybody go out and chased the stooges 
off the jobs. First they call on the members. That 
is the way they all go out. 

The Chairman: The question here is if you are 
guilty or not guilty. 

Mr. Souza: I am guilty. 

The Clerk : Ashworth. 

Mr. Ashworth: I am guilty. 

The Clerk: Denkowski. 

Mr. Denkowski: Yes. I walk out, too. Yes, sure, 
I plead guilty for walking out. 

The Clerk: Barboni. 

Mr. Barboni: Guilty. 

The Clerk: Rigo. 

Mr. Rigo: They way it looks to me, I don't see 
how I can promote or encourage a strike when 
I 

Mr. Perucca: He wasn't there. 

Mr. Rigo: I wasn't there. 

Mr. Duarte: He is charged under another 
charge. 

The Clerk: That is right. I am sorry. 

Lee. 

Mr. Lee: I plead guilty. 

The Clerk: Perucca? 

Mr. Perucca: Well, I am guilty from about 



N. L. B. B. et at 973 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

12:00 noon until 8:00 o'clock or 9:00 o'clock the 

next day. 

Mr. Hixon: He was out. That's all there was 
to it. 

The Clerk: Munoz. 

Mr. Munoz: Guilty. 

The Clerk: Cerrato. Ann Cerrato. 

Miss Cerrato: Guilty. 

The Clerk: Ros. 

Miss Ros: Guilty. 

The Clerk : Paige. 

Miss Paige: Guilty, I guess. I don't feel that 
way. 

The Clerk: Tate. 

Mr. Tate: Guilty. 

The Clerk : That is all I have. Is there anybody 
here that did not plead? 

Mr. Duarte: Did we miss anybody's name? 

Mr. Periera: K. Periera. 

The Clerk: K. Periera. 

Mr. Periera: How come that man is down here 
tonight, when he was up on his vacation at the time 
of the strike? 

Mr. Duarte: The charges against Rigo — Is that 
the name? 

Mr. Rigo: (Nodding affirmatively.) 

Mr. Duarte: are a question of fomenting 

and encouraging a strike at Colgate-Palmolive -Peet. 
Are you guilty or not guilty of that charge? 



974 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

Mr. Rigo: No, I am not guilty. I can't be. 

Mr. Duarte: Very well. 

This charge will be taken np, and we will try to 
prove this brother was engaging in the fomenting of 
a strike at the Peet plant. 

Is that the whole list? 

The Clerk: Yes. 

Mr. Duarte: There are two separate petitions 
here. First we have the question of those people 
engaged in the wartime strike. Second, Vv^e have 
a witness against Brother Rigo. 

I suggest that we dispense with the largest group, 
and that those people who are here who have pleaded 
guilty to the charge, then 

Is Alegre here? 

Voices: No. No, he is not. 

Mr. Duarte: He left. 

Then I suggest that we take up the question of 
Brother Rigo. We only have one witness on that 
particular thing, and the Committee can decide the 
two issues. 

You have one here where a group of workers were 
involved in a strike, and you have one worker who 
claims he was not involved in that strike and has 
other charges against him. So, I suggest we dis- 
pense with one and go into the other. 

I would like to suggest that if any one member 
of the group of Defendants wishes to make any 



iV. L. U. B. et al 975 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

statement to wind up this case, I will make a clos- 
ing statement after they do. 

The Chairman: The first thing we should find 
out is if the case is closed, that is, if either side 
has presented whatever they want to present. That 
is one thing. We want to find out if the Defend- 
ants or the witnesses have any more to say at this 
particular time. Otherwise, we will proceed. 

Mr. Duarte: Pardon me for interrupting, Mr. 
Chairman, but we have no other evidence to pre- 
sent, except the case of Brother Rigo, which we 
will deal with separately. The rest of the cases are 
closed, as far as the prosecution is concerned. 

Mr. Gleichman: Mr. Chairman, may I present 
my testimony now ? 

Mr. Duarte : No, not yet. 

The Chairman: Do the parties wdsh to present 
oral arguments'? Do the two parties wish to have 
discussions between themselves"? We will give 15 
minutes to each side, if you wish to do that. 

Mr. Denkowski: For what, Mr. Chairman? 

The Chairman: For wdiatever you may be in- 
terested in. If you w^ant to have a discussion be- 
tween yourselves, we can give you wdiatever you 
want ; ten minutes, five minutes or fifteen minutes. 

Mr. Souza: We all plead guilty. 

Mr. Duarte: If there is no objection, I would 
like to withdraw my first statement on the basis of 
handling the Bigo case separately, present that evi- 



976 Colgate-Pahnolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

dence now and then wind up the case all at once. 

If there is no objection to that, we can do it on 

that basis. 

The Chairman: All right. The Chair will rule 
that we go ahead that way. 

Mr. Duarte: Mr. Gleichman. 



HACK GLEICHMAN 

called as a witness on behalf of the Plaintiff, hav- 
ing been first duly sworn, was examined and testi- 
fied as follows: 

Direct Examination 

By Mr. Duarte: 

Q. Two brothers have been charged under the 
corrected Bill of Particulars, the letter. Exhibit E, 
dated December 13, 1945, wdiere Brother Rigo and 
Brother Alegre are charged with fomenting and 
encouraging a wartime strike at Colgate-Palmolive- 
Peet Company. Have you any statement or any 
evidence in support of these charges? 

A. Mr. Chairman, on at least four different oc- 
casions I spoke to both brothers, Alegre and Rigo, 
regarding their activities in talking strike before 
the strike occurred, regardless of whether they 
were there when the strike took place or not, be- 
cause in my job, in working with the Stewards and 
in working with those that were trying to carry out 



N. L. R. B. et al 911 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Hack Gleichman.) 

the program of the Union in this particular plant, I 

naturally was aware that something was going on, 

and so I tried to ferret out those individuals who 

were most active, which I had to do continually 

from that point on. Both of these brothers were 

outstanding in their activity prior to the strike, and 

that, as far as I know, is fomenting a strike. 

Mr. Rigo: May I speak on that? 

Q. Did they discuss the question of strike with 
anyone *? 

Mr. Rigo: May I interrupt that, please? 

Mr. Duarte: Wait until I finish, will you? 

Q. (By Mr. Duarte) : Did they discuss the ques- 
tion of striking against the Union or against the 
Employer, either one, to your knowledge ? 

A. Well, the way the thing developed, there 
was no fine line of demarcation between what kind 
of strike it was. They were just talking in general 
terms about striking, and at times they would have 
an audience of two or three or four, and sometimes 
they would have an audience of eight or ten. Some- 
times I would see it personally, and sometimes I 
would hear about it and get to it before it was ter- 
minated. 

Q. Then, in your opinion these discussions of 
strikes led up to the August 1st incident, where the 
people walked off the job? 

A. Absolutely. They were indulging in what I 
consider a super-militant attitude on this particu- 



978 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Hack Gleichman.) 
lar question of getting the people aroused to tak- 
ing some kind of overt action which, even to me at 
the time, I didn't know what was going on. It 
wasn't until the thing hit that I was convinced that 
this was what they were out to do. They were 
leaders in it. 

Q. Did you discuss this with either one of the 
brothers, the question of the action? 

A. Sure, I discussed it. 

Mr. Rigo: No. That is wrong. He did not dis- 
cuss it. 

The Witness: I have taken an oath, Mr. Chair- 
man, and I will say that I discussed it with the 
brothers, not once but at least four times, to my 
knowledge, that their activities were detrimental 
to the smooth running of the operation at Colgate- 
Palmolive-Peet. 

Q. (By Mr. Duarte) : Are you referring to 
Brother Rigo and Brother A. Alegre. 

Q. Alegre. You state that they did foment 

or were part of or were engaged in discussing the 
question of strike action"? A. I do. 

Q. And that this agitation for strike action, 
in your opinion, tit into the pattern of the August 
1st strike? A. That is correct. 

Mr. Duarte: That is all. 

Do you want to ask him some questions'? 

Mr. Rigo: Yes. 



A^ L. E. B. et at 979 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Hack Gleichman.) 

Cross-Examination 

Mr. Rigo : To tell you the truth, I never see this 
man until after the strike, after I came back from 
my vacation. Now, how can I foment or encourage 
anybody after the strike was done? 

The Witness: Mr. Chairman, may I answer 
that? 

The Chairman : Yes, you may answer. 

The Witness: All I can say is that I was there 
from June 18th until right now. As a matter of 
fact, I was at Peet's today. I am there at least 
a few times a week. Anybody that has not seen 
me must be blind. That is all I can say. 

Mr. Duarte: That is all the questions I have. 

Do you want to ask him any more questions'? 

Mr. Rigo: Yes. 

When was the first time I saw you there? It was 
when I paid my dues. That was when I came back 
from my vacation. When I came back from my 
vacation, that was on the 8th of August, and a week 
after then you came and collected dues. That is the 
first time I saw you in there, and I don't see how 
I can be responsible for encouraging people to go 
out on that strike. 

Mr. Duarte: Let me ask you: What was the 
first time you met this brother? 

The Witness : I would say roughly that the first 



980 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

(Testimony of Hack Gleichman.) 

time I warned him was about a week prior to 

the— 

Mr. Rigo: No, it wasn't. 

The Witness: to the strike. 

Mr. Rigo : One week prior to the strike, I wasn't 
there. 

The Witness : Well, a week prior to the action of 
the strike. 

Mr. Rigo: I wasn't there. 

Mr. Duarte : That is all. 
(Witness excused.) 

Mr. Duarte: I would like to make a few re- 
marks, if it is in order, under Point 14. We can go 
back there, Mr. Chairman, where you stated that 
each side would have fifteen minutes to close the 
argument, and that the Prosecution would oj^en and 
close the argument. 

I want to say that the Union charges these de- 
fendants, with the exception of Rigo and Alegre, 
with being engaged in a wartime strike. The evi- 
dence presented and the stipulations entered into 
prove that there was a wartime strike. 

This Union has a history of militancy that no 
other Union in the country can match in terms of 
fighting for job rights, fighting for wages, and, 
yes, strikes. This Union has a reputation for con- 
ducting and bringing to a successful conclusion 
strikes. But, this Union took an oath during the 



N. L. R. B. et al 981 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

war that there wonld be no strikes and there were 
no strikes, Avith the exception of this strike that oc- 
curred at Pahnolive-Peet. 

The Prosecution maintains that the strike at Col- 
gate-Palmolive-Peet was an action that gave this 
Union, so to speak, a "black eye" in the history of 
labor. Our record was 100 per cent during the war, 
and that record would have maintained its 100 per 
cent stature if this action had not been taken. 

I want to emphasize that whether we deal with 
our membership as committees, or whether we deal 
with employees, or the International, or the Na- 
tional CIO, when we make a pledge we have a 
reputation of maintaining that pledge. If it is a 
fight for wages, we carry it through with the whole 
support of our entire Union and International 
Union, and when we made a pledge that there would 
be no strikes, we made it, not with our tongue in 
our cheek, but we made it as sincere trade union- 
ists in attempting to win the war. 

That has been the position of this Union since 
Pearl Harbor and before, that there would be no 
strikes. Even if this program of no strikes did not 
meet with the approval of a lot of people in and 
out of labor, we kept that record faithfully imtil 
this particular incident came about. 

We ask that the Trial Committee fix the proper 
penalties for the action of the August 1st strike. 

That is all I have to say. 

The Chairman: In closing, I have this to say, 



982 C olgate-PalmoUve-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

that the Trial Committee, consisting of five mem- 
bers 

Mr. Heide: Just a minute. This is off the rec- 
ord. 

(Remarks outside the record.) 

The Chairman : Does anybody wish to say some- 
thing? 

Mr. Azevedo: I am still going to insist that the 
time we walked off the job we did not walk out with 
the intention of going out on a strike. The reason 
we walked off that plant was because our Stewards 
were suspended. After we walked off, we stayed the 
following day, and they said we were out on strike, 
but none of us walked out with the intention of 
going out on strike. There was this question of 
going out for a little while. 

Miss Paige: Absolutely. I feel the same way, 
because no one is more opposed to a wartime strike 
than I am, and I don't like to be accused of it. 

Mr. Denkowski: I didn't know I was walking 
out on a strike when the foreman came in at 11:00 
o'clock, and I was blowing granulated soap. The 
foreman comes in and tells me to close. I didn't 
know a thing about it. The brother just said that 
none of us attended the meeting, and the brother 
knows that I did attend the meeting. We were go- 
ing to elect a Steward. I didn't know a thing about 
it being a strike. Everybody went, and I went with 
them. I didn't know a thing about there being a 
strike. That is all. 



N. L. R. B. et at 983 

Intervener's Exhibit No. 9 — Proceedings 
Before Vfarehoiise Union — (Cont'd) 

Mr. Hixon: Of conrse, we cannot plead onr ig- 
norance for all of the 21, I will admit that. But, 
when we went out there at noon it was with the in- 
tention of holding a meeting and coming back, but 
then, after we got into this meeting we was mis- 
led to the extent that they did not want to call 
it a strike. They wanted to call it a continuous 
meeting, but, as far as walking off, at the time, if I 
had thought we was going to participate in a strike, 
I myself did not know that until we got into this 
meeting, and then, the rest of them, they just stayed 
out. But, as far as anybody coming through the 
plant and telling us, "You are going to a meeting," 
or "You are going out on strike," if it was told, 
it wasn't told to me at the time. 

Mr. Perucca: I would like to make a little 
speech. I woidd like to make a statement that when 
the Trial Conmiittee arrives at their decision, they 
take into consideration that there was about 300 of 
us that went out, instead of just 28, and also I was 
told by a Union member — I believe he knows what 
he is talking about — that the dried fruit strike, or 
work stoppage, whatever you call it, was called dur- 
ing wartime. I would like to have you take that 
into consideration, too. 

Mr. Eigo: If these people go out without the 
intention of going out on strike, how can I be pro- 
moting a strike"? 

Mr. Duarte: If there are no further statements, 
I would like to close the trial by just hitting on a 



984 Colgate-Palmolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

few points. That is, if there are no further state- 
ments, because when I have finished, I believe that 
is the end. 

The Chairman: Are there any further state- 
ments that anyone wants to make? 

Mr. Gleichman: A point of information, Mr. 
Chairman. May I have it? 

The Chairman: Yes. 

Mr. Gleichman : That dried fruit strike was after 
the war, not before. 

Mr. PerTicca : I am not familiar with it. I was 
just told that it was so. I don't know. 

Mr. Duarte: If there are no other statements, 
I would like to make one. 

1. Continuous meetings, going fishing, prayer 
meetings, or any other type of meeting during the 
war that are used or were used to keep workers 
off their jobs and stop production, was a strike. 
There are no two ways about it. There were many 
unions that had prayer meetings that lasted two 
weeks. There were many unions that had continu- 
ous meetings that lasted that length of time. Going 
fishing was a good example of how some unions 
struck. But, it was all subterfuge, it was all strikes, 
and it was a strike, when it got down to the sense 
of it. People were not working. They just did not 
go to work. They went to meetings. They did not 
hold meetings. They struck. It was a strike with- 
out pickets. 

Any stoppage of work during the war was a 



N, L. E. B. et at 985 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

strike. You could not call it anything else but a 
strike. Give it any name you want, but it was a 
stoppage of work, and it was a strike. 

The question of whether these people were en- 
gaged in a strike or not I think has been clearly 
shown by their own arguments and by the evidence 
presented. These people have been charged, these 
people and these people alone. But, I want to make 
one point that the Committee should take into con- 
sideration. 

(1) That when this trial started there was a 
group of people here who are no longer present, but 
who left the meeting and refused to stand trial. 

(2) That the iDcople that remained did have an 
opportunity to state whether or not they were or 
were not engaged in a strike, a stoppage of work, 
a continuous meeting, a prayer meeting, or whether 
they went fishing. But, it all boils down to the fact 
that they were all engaged in a strike and a stop- 
page of work. 

As to the two defendants who are charged with 
fomenting a strike, the proof I think exists in the 
fact that one of the brothers so charged left the 
meeting and refused to stand trial. The other 
brother remained and stood trial. 

The evidence is before the Committee, and I say 
again that it is now the duty of the Committee, as 
they are charged by the membership of this Union, 
to search the record and make their recommenda- 
tion to the membership. 

Mr. Denkowski: Brother Chairman, a point of 



986 C olgate-Pahnolive-Peet Co. vs. 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

information. I don't know, and maybe I am wrong, 
but there are quite a few of us — there is only a lit- 
tle grou]) here, not the 200 or so people who went 
on strike and stayed for two and a half days. There 
are only a few of us in here, and some way or an- 
other we are taking a beating, or something, for the 
other people. They went on a strike for two and 
a half days. Why can't we all get punishment, in- 
stead of a few? 

The Chairman: Does anyone have anything to 
say? 

Mr. Duarte: I just want to reiterate that these 
people were charged. I want to point out once 
again that because there were other people who 
might have been in the same circumstances but 
were not charged does not excuse the guilt of any- 
one who was involved in the strike. 

I think, Mr. Chairman, that ought to w^ind up 
the trial, and we should not get into a cross-fire 
here between the Defendants, myself and you. 

Mr. Heppler: May I state one more thing, if I 
may? 

I would like the Trial Committee to take into 
consideration that we have been off the job for go- 
ing on close to four months, also, when they bring 
in their recommendations to the rank and tile. 

The Chairman : In closing, we on the Trial Com- 
mittee of five members will try to come to a con- 
clusion. We will consider both cases, the testimony 
of the witnesses and of the Defendants, and we 
will try our very best to come to what we consider 



N. L. R. B. et al 987 

Intervener's Exhibit No. 9 — Proceedings 
Before Warehouse Union — (Cont'd) 

a fair decision of the issue. It will be presented 
at the next regular membership meeting, held the 
fourth Thursday night of this month at the Audi- 
torium. 

Mr. Duarte : That is the 27th. 
The Chairman: The 27th would be right. This 
will all be done according to our Constitution. 

If nobody else anything more to say, I think we 
can adjourn the meeting. 

(Whereupon, at 10:30 P.M., Monday, Decem- 
ber 17, 1945, the hearing of the Trial Commit- 
tee was adjourned.) 



[Endorsed] : No. 11514. United States Circuit 
Court of Appeals for the Ninth Circuit. Colgate- 
Palmolive-Peet Company, Petitioner, vs. National 
Labor Relations Board, Respondent, and Interna- 
tional Chemical Workers Union, A.F.L., et al., In- 
tervenors, and Warehouse Union Local 6, Interna- 
tional Longshoremen's & Warehousemen's LTnion 
(CIO), Intervenor, and National Labor Relations 
Board, Petitioner, vs. Colgate-Palmolive-Peet Com- 
pany, Respondent. Transcript of Record. Upon 
Petition to Review and Petition to Enforce Order 
of the National Labor Relations Board. 

Filed February 3, 1947. 

/s/ PAUL P. O'BRIEN, 
Clerk of the LTnited States Circuit Court of Ap- 
peals for the Ninth Circuit. 



No. 11,514 

IN THE 

United States Circuit Court of Appeals 

For the Ninth Circuit 



Colgate-Palmolive-Peet Company, 

Petitioner, 
vs. 

National Labor Relations Board, 

Respondent, 
and 

International Chemical Workers 
Union, A. F. L., et al., 

Intervenors, 
and 

Warehouse Union Local 6, Inter- 
national Longshoremen's & Ware- 
housemen's Union (CIO), 

Intervenor, 
and 

National Labor Relations Board, 

Petitioner, 

vs. 

Colgate-Palmolive-Peet Company, 

Respondent. 



MAY - V 1941 



BRIEF FOR PETITIONER, 

' Pi O'BRIEn 
COLQATE=PALMOLIVE=PEET COMPANY.-^ GL%m 



Philip S. Ehrlich, 
Bartley C. Crum, 
R. J. Hecht, 

2002 Russ Building, San Francisco 4, 

Attorneys for Petitioner. 



Fbbnatj-Walsh Printing Co., San Feanoibco 



Subject Index 

Page 
Statement of jurisdiction 2 

Opinion below 2 

Jurisdiction 2 

Statement of the case 3 

Board 's complaint 11 

Petitioner 's answer 12 

Proceedings before the Board's Trial Examiner 16 

Trial Examiner's decision in favor of petitioner 17 

Board's decision overruling Trial Examiner 19 

Proceedings had after the decision of the Board 20 

Narrative of the facts 23 

Assignments and specifications of error 55 

Argument 58 

1. The petitioner was entitled to a dismissal of the com- 
plaint because the National Labor Relations Act did 
not prohibit the coercion of employees by labor or- 
ganizations, and thereunder a labor organization could 
lawfully require the performance of a ''closed shop" 
contract even though such performance resulted in 

the coercion of employees 58 

Petitioner's reasons for requesting the court to re- 
consider the question resolved by it in the case of 
Local 2880, etc., v. N.L.R.B., 158 Fed. (2d) 365. . 58 
Statement of Board's argument in support of its 
right, under the National Labor Relations Act, 
to declare unions ineligible to be parties to "closed 

shop ' ' contracts 59 

Major premise of Board's argument depends for its 
validity on the truth of the assumed proposition 
that the coercion of employees by unions has been 

prohibited by Congress 61 

The premises of the Board's argument are false, 
because Congress expressly stated that it did not 
intend to prohibit the coercion of employees by 
union or to provide for the regulation of unions 62 



ii Subject Index 

Page 

Tlie background of the Wagner Act and the reasons 
for its one-sided and defective approach to the 

problem sought to be resolved 65 

The Ansley case. The Board recognizes that the 
Act does not prohibit the coercion of employees 

by unions 69 

The Act's failure to prohibit the coercion of em- 
ployees by unions resulted in the recognition of 
the necessity of congressional intervention to 

democratize employees ' organizations 71 

The Rutland case. Legislation by the Board 74 

The dilemma created by the Rutland case 7& 

In enacting the "Labor Management Relations Act, 
1947", Congress has again declared that the 
Wagner Act was not intended to prohibit the 
coercion of employees by unions 80 

2. Even if it (be assumed that the Act did prohibit the 
coercion of employees by unions, the petitioner was 
nevertheless entitled to a dismissal of the complaint 
because the record fails to disclose any evidence show- 
ing that the CIO discriminated against employees be- 
cause of their advocacy of another organization as the 
bargaining representative 85 

The discharge of the employees was requested be^ 
cause of a violation of the CIO policy against 
strikes and not because of activity for a new bar- 
gaining agent 85 

An act unlawful in itself is not Converted by a 
malicious or bad motive into an unlawful act ... . 87 

3. Even if it be assumed that the Board has power to 
prevent the 'coercion of employees by labor organiza- 
tions and that the CIO suspended its members because, 
of their advocacy of another union, the petitioner 
was entitled to a dismissal of the complaint because 
there iis no evidence in the record that the petitioner 
had knowledge of the CIO's alleged malicious motiva- 
tion 91 

The Board's findings that petitioner had "knowl- 
edge" of its employees' anti-CIO activity when it 



Subject Index iii 

Page 

discharged the first two groups of employees, are 
based on invalid and prohibited inferences and 
should be disregarded 93 

The finding that on August 15, 1945, petitioner ob- 
tained knowledge that the CIO was threatening 
employees 'Svith discharge" for AFL activity 
is not supported by the record 104 

The Board's finding that on August 17, 1945, peti- 
tioner was clearly apprised of the nature of the 
CIO's motivation by the charges of discrimination 
filed with the Board, is contrary to the record. . . . 106 

The Board's finding that on August 31, 1945, the 
petitioner was again informed of a CIO threat to 
discharge employees is not supported by the record 108 

The Board's finding that the petitioner discharged 
twenty-eight employees for permissible AFL ac- 
tivity is not sustained by the record 109 

The Board's conclusionary finding that petitioner 
made no bona fide effort to evaluate the evidence 
is based on an invalid presumption, disregards a 
valid presumption and is contrary to the record. . Ill 

(a) The finding that the petitioner made no ef- 
fort to evaluate the evidence before it is in- 
valid because it is based on the equally invalid 
presumption that the petitioner knew of the 
Board's view of the law 113 

(b) The Board cannot sustain its finding by re- 
jecting the uncontradicted testimony of peti- 
tioner's officers respecting their inability to 
ascertain the true motives of the reasons of 
the CIO 118 

The findings of the Board as to the CIO's alleged 
illegal motivation must be rejected because the 
record discloses that the CIO had a compelling 
and valid reason for requesting a discharge of its 
delinquent members 120 

Conclusion 124 



Table of Authorities Cited 



Cases Pages 

A. E. Staley Mfg. Co. v. N.L.R.B. (1941; CCA 7th), 117 
Fed. (2d) 868 92 

Aluminum Co. v. N.L.R.B. (1946), 159 Fed. (2d) 523 58 

Aluminum Ore Co. v. N.L.R.B. (CCA 7th; 1942), 131 
Fed. (2d) 485 22 

Ansley Radio Corp. (1939), 18 N.L.R.B. 1028 69, 71, 74, 113 

Biles Coleman Lbr. Co. (1937), 4 N.L.R.B. 679 100 

Boeing Airplane Co. v. N.L.R.B. (1944; CCA 10th), 140 
Fed. (2d) 423 93 

Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57, 11 L.R.A. 

545, 34 Am. St. Rep. 165 91 

Cover Fork Coal Co. (1937), 4 N.L.R.B. 202 100 

Crow Coal Co. (1938), 9 N.L.R.B. 1149 100 

Diamond T Motor Company (1945), 64 N.L.R.B. 1225-1226 

113, 115 

GaUoway v. U. S. (1943), 319 U. S. 372, 87 L. Ed. 1458. . .98, 105 
Gunning v. Cooley, 281 U. S. 90, 74 Jj. Ed. ,720 99 

Hicks V. Reis (1943), 21 Cal. (2d) 654, 134 Pac. (2d) 788 120 

James v. Marinship Corporation (1944), 25 Cal. (2d) 721, 
155 Pac. (2d) 329 77, 78 

Levy V. Superior Court (1940), 15 Cal. (2d) 692, 104 iPac. 

(2d) 770 77 

Local 2880, etc. v. N.L.R.B. (1946), 158 Fed. (2d) 365 (cert. 

granted, 331 U. S. 798, 91 L. Ed. 1077) 

58, 59, 60, 61, 62, 74, 84, 124 

Montalbo v. Hires Bottling Company (1943), 59 Cal. App. 
(2d) 642, 139 Pac. (2d) 666 77 

National Linen Service Corp. (1943), 48 N.L.R.B. 171. .88, 89, 112 
N.L.R.B. V. Draper Corporation (1944; CCA 4th), 145 Fed. 
(2d) 199 94 



Table of Authorities Cited v 

Pages 
N.L.R.B. V. Goodyear Tire & Rubber Co. (1942; CCA 5th), 

129 Fed. (2d) 661 123 

N.L.R.B. V. Nevada Consol. Copper Corp. (1942), 316 

U. S. 105, 86 L. Ed. 1302 99 

N.L.R.B. V. Pick Mfg. Co. (1944; CCA 7th), 135 Fed. 

(2d) 329 96 

N.L.R.B. V. Sunshine Mining Co. (CCA 9th; 1942), 125 

Fed. (2d) 757 22 

N.L.R.B. V. Superior Tanning Co. (1941; CCA 7th), 117 

Fed. (2d) 881 92 

N.L.R.B. V. Union Pacific Stages, Inc. (1938; CCA 9th), 

99 Fed. (2d) 153 104 

Park & IT. I. Corp. v. Int. etc. of Teamsters (1946), 27 
Cal. (2d) 599, 165 Pac. (2d) 891 69, 76 

Pennsylvania R. Co. v. Chamberlain (1932), 288 U. S. 333, 
77 L. Ed. 819 99 

People v. Brophy, 49 Cal. App. (2d) 15, 120 P. (2d) 946. . . 79 

People v. Weitzel (1927), 201 Cal. 116, 255 Pac. 792 81 

Rutland Court Owners, Inc. (1942), 44 N.L.R.B. 587 

74, 75, 76, 91, 94, 124 

Ryder v. Bamberger (1916), 172 Cal. 791, 158 Pac. 753. .. . 120 

Schott V. Dosh (1896), 49 Nebr. 187, 68 N. W. 346, 59 
Am. St. Rep. 531 118 

Todd v. S.E.C. (1943 ; CCA 6th), 137 F. (2d) 475 114 

U. S. v. Calif. Midway Oil Co. (1919), 259 Fed. 343 120 

WaUace Corporation v. N.L.R.B. (1944), 323 U. S. 248, 
89 L. Ed. 216 84 

Wilson & Co. V. N.L.R.B. (1941; CCA 8th), 123 Fed. (2d) 
411 92 

Wyman-Gordon Co. v. N.L.R.B. (1946; CCA 7th), 153 Fed. 
(2d) 480 92,122 



vi Table of Authorities Cited 

Statutes Pages 

California Labor Code, Section 1126 77 

National Labor Relations Act: 

Sections 1 to 16 7 

Section 7 7, 8, 11 

Section 8 3, 6, 8, 9, 10, 80 

Section 8(1) 7, 65, 100 

Section 8(1) (3) 3, 6, 11, 55, 91 

Section 8(3) 3, 8, 65 

Section 8(b) (1) and (2) 81 

Section 9(a) 7 

29 U.S.CA., Section 151, et seq 23 

29 U.S.CA., Section 158(1) (3) 7 

29 U.S.CA, Section 158(b) (1) (2) 3, 82 

29 U.S.CA, Section 159 8 

29 U.S.CA, Section 160(f) 2, 3 

Miscellaneous 

1 Am. Jur., Actions, Section 25, pages 420-421 88 

31 C. J. S., Evidence, Section 132, page 760 116 

31 C. J. S., Evidence, Section 173, page 760 116 

Democracy in Trade Unions, page 68 72 

"Federal Labor Relations Bill of 1947", (S. 1126), subsec- 
tions (1) and (2) 8, 9 

H. R. Report No. 510, 80th Congress 1st Session, pages 
39 and 40 83, 84 

Jones, Commentaries on the Law of Evidence, 1913, Vol. 1, 
Section 13, pages 98-100 100 

Senate Reports, Vol. 9877, 74th Congress, First Session, R. 
573, to accompany S. 958, May 2, 1935, at page 16 63 



Table of Authorities Cited vii 

Pages 
Teller, "A Labor Policy for America" (Baker, Voorhis & 
Company, Inc., 1945) : 

pages 36 and 37 71 

page 152 72 

page 168 73 

Teller, "Labor Disputes and Collective Bargaining", Cum. 

Supp., April, 1947, pages 105-106 76 

Teller, "Labor Disputes and Collective Bargaining" (1940), 

Volume Two, Section 244, page 695 66 

Teller, Special Supplement, ' * The Law Governing Labor Dis- 
putes and Collective Bargaining", pages 71, 72, and "The 
New Labor Law ' ' ( The Bureau of National Affairs) , pages 

C-20 and C-21 8, 9 

Toner, "The Closed Shop" (1944), Amer. Council on Pub- 
lic Affairs, Washington, D. C, pages 191-192 74 

Tucker, "Guide to National Labor Relations Act", page 
226 (1947), Commerce Clearing House, Inc 113 



No. 11,514 

IN THE 

United States Circuit Court of Appeals 

For the Ninth Circuit 



Colgate-Palmolive-Peet Company, 

Petitioner, 

vs. 

National Labor Relations Board, 

Respondent, 
and 

International Chemical Workers 
Union, A. F. L., et al., 

Intervenors, 
and 

Warehouse Union Local 6, Inter- 
national Longshoremen's & Ware- 
housemen's Union (CIO), 

Intervenor, 
and 

National Labor Relations Board, 

Petitioner, 

vs. 

Colgate-Palmolive-Peet Company, 

^Respondent. 



BRIEF FOR PETITIONER, 
COLGATE=PALMOLIVE=PEET COMPANY. 



STATEMENT OF JURISDICTION. 

The Petitioner herein, is Colgate-Pahnolive-Peet 
Company, a corporation (hereinafter called Peti- 
tioner) . 

This matter comes before this Court on Petitioner's 
petition for review (R. 101-126) of a decision of the 
National Labor Relations Board (R. 68-85) (herein- 
after called the Board) in a complaint case filed by 
the Board against the Petitioner. The complaint 
(R. 4-10) was based on charges of unfair labor prac- 
tices brought by International Chemical Workers 
Union, A.F.L., plaintiff in intervention herein (here- 
inafter called AFL). Three charges were preferred 
by the A.F.L. The first charge was filed on August 
14, 1945 (R. 92-93) ; the second or first amended 
charge was filed on October 4, 1945 (R. 89-92) ; and 
the third or second amended charge was filed January 
18, 1946. (R. 1-4.) 

Opinion below. 

The opinion, decision and order of the Board is re- 
ported in 70 N.L.R.B. 1202, and entitled therein "In 
the Matter of Colgate-Palmohve-Peet Company and 
International Chemical Workers Union, A. F. of L." 
(Case No. 20-C-1937; R. 68-85). 

Jurisdiction. 

The petition herein was filed on December 30, 1946. 
At that time the National Labor Relations Act (here- 
inafter sometimes referred to as the Wagner Act), 29 
U.S.C.A., Sec. 160(f), then in effect, conferred juris- 
diction upon this Court to review orders and decisions 



of the Board, and provided the procedure therefor. 
The Labor Management Relations Act, 1947 (herein- 
after sometimes referred to as the new Act or the 
Taft-Hartley Act), 29 U.S.C.A., Sec. 160(f), now in 
effect, likewise confers jurisdiction upon this Court 
to review such orders and also provides the procedure 
therefor. 



STATEMENT OF THE CASE. 

This is a petition for review (R. 101) of a decision 
and order (R. 68) of the Board dated September 6, 
1946. In this decision the Board found that the Peti- 
tioner had discharged and refused to reinstate thirty- 
seven of its employees because of their activities on 
behalf of the AFL and against International Long- 
shoremen's & Warehousemen's Union No. 6, CIO 
(hereinafter called CIO) in violation of Section 
8(1)(3) of the National Labor Relations Act of 
1935^ (29 U.S.C.A., Sec. 158(1) (3); R. 79). It is 
important to note in connection with this finding that 
the Board also found or concluded that : 

1. At the time this case arose there was a valid 
contract, entered into and executed in compliance 
with the terms and conditions of the proviso to Sec- 
tion (8) (3)'^ of the National Labor Relations Act, 
between the Petitioner and the CIO, which required 



^Substantial changes in and additions to Section 8 of National 
Labor Relations Act have been effected by the enactment of the 
Labor Management Relations Act, 1947. 

2The text of Section 8 of the National Labor Relations Act is 
set forth at pages 6-7, infra. , , , 



as a condition of employment membership in the CIO 
(R. 69). 

2. At the time this case arose a question concern- 
ing the representation of Petitioner's employees was 
pending. (R. 75.) 

3. The employees involved were suspended from 
membership by the CIO, and were discharged by the 
Petitioner at the request of the CIO under the terms 
of the contract. (R. 70; 71; 74-75.) 

4. Twenty-eight of the employees involved had 
participated, prior to their discharge, in a strike. (R. 
70; 72.) (The Board in its decision fails to note or 
mention the admitted fact that this strike was not 
sanctioned by the CIO (R. 258), and was contrary to 
and in violation of the CIO policy and pledge not to 
engage in strikes during the course of the war (R. 
420-421; 506-507), and that the nine other employees 
involved all had a part in fomenting this strike. 
(R. 202-203; 274; 296; 366-367; 404-407; 420-421).) 

5. All of the employees involved, prior to their dis- 
charge, engaged in activities intended to displace the 
CIO as the bargaining representative of Petitioner's 
employees and to substitute in its stead the AFL. 
(R. 70-72.) 

6. All the employees involved, prior to their dis- 
charge, advised the Petitioner and the CIO that they 
had withdrawn from the CIO. 



5 



7. The CIO, after trial expelled^ all the em- 
ployees involved, ^'principally for their anti-CIO con- 
duct in 'undermining union policies.' " (R. 75.) (In 
this finding the Board is referring to two decisions 
of trial committees of the CIO which are evidence as 
Intervenor's Exhibits Nos. 6 and 7. (R. 856; 867.) 
These show that five employees, who had been CIO 
stewards were found guilty of failing to enforce the 
CIO policy against racial discrimination (R. 862), 
and of failing to perform other duties of their office 
(R. 863 ; 864) ; that four of the employees were found 
guilty of fomenting the war-time strike, and of de- 
faming an officer of the CIO (R. 865) ; and that 
twenty-seven employees were found guilty of par- 
ticipating in or fomenting a war-time strike. (R. 
873).) 

8. The CIO, although it expelled and suspended 
the employees for ''undermining union policies", as 
set forth in 6 above, in so doing was motivated solely 
hy its desire to punish them for their activities against 
it and on behalf of the AFL. (R. 76.) 

9. Although the Petitioner knew of several valid 
reasons, including the activities described in 5 and 6 
above, on which the CIO could have justified the ex- 
pulsion and suspension of the employees, it also knew, 
when it discharged the employees, that the CIO in so 



3The Board is in error in finding that all the employees were 
expelled. The record makes it clear that at least fifteen of the 
persons involved pleaded guilty, before a trial committee of the 
CIO, to the charge of participating in a wartime strike in violation 
of the CIO policv and pledge, and were placed on probation, not 
expelled. (R. 506-507; 328-329.) 



suspending and expelling them was motivated solely 
dy its desire to punish thetn for their activities against 
it and on behalf of the AFL, and Petitioner, there- 
fore, violated Section 8(1)(3) of the National Labor 
Relations Act. (R. 76.) 

10. The Petitioner made no bona fide effort to 
evaluate the evidence before it, otherwise it would 
have drawn therefrom the same inferences and deduc- 
tions as did the Board, and would have inevitably 
concluded that the CIO in requesting the discharges 
was acting in reprisal against the employees because 
of their anti-CIO activity (R. 78; 79). 

On the basis of the foregoing findings, the Board 
ordered the Petitioner to: 

Cease and desist from discouraging membership in 
the AFL, or encouraging membership in the CIO by 
discharging or refusing to reinstate any of its em- 
ployees (R. 80). 

Offer to the discharged employees immediate and 
full reinstatement (R. 81). 

Make whole the discharged employees for any loss 
of pay suffered by them by reason of Petitioner's 
alleged discrimination (R. 81). 

Section 8(1) (3) of the National Labor Relations 
Act, allegedly violated by Petitioner, provided as 
follows : 

^'Section 158.^ Unfair Labor Practices by 
Employer Defined. 



^Section 8 of National Labor Relations Act. 



It shall be an unfair labor practice for an 
employer — 

(1) To interfere with, restrain, or coerce em- 
ployees in the exercise of the rights guaranteed 

in Section 157^ of this title. 
******* 

(3) By discrimination in regard to hire or 
tenure of employment or any term or condition 
of employment or any term or condition of em- 
ployment to encourage or discourage membership 
in any labor organization: Provided, That noth- 
in sections 151-166^ of this title or in any other 
statute of the United States, shall preclude an 
employer from making an agreement with a labor 
organization (not established, maintained, or as- 
sisted, by any action defined in sections 151-166'' 
of this title as an unfair labor practice) to re- 
quire as a condition of employment memberships 
therein, if such labor organization is the repre- 
sentative of the employees as provided in Section 
159 (a)^ of this title, in the appropriate bargain- 
ing unit covered by such agreement when made/' 
(Italics ours.) 

29 U.S.C.A., Section 158(1) (3.) 

Section 7 of the National Labor Relations Act men- 
tioned in Section 8(1) above read as follows: 

"Section 157. Right of Employees as to Or- 
ganization, Collective Bargaining, etc. 

Employees shall have the right to self-organiza- 
tion, to form, join, or assist labor organizations, 



^Section 7 of National Labor Relations Act. 
•^Sections 1 to 16 of National Labor Relations Act. 
■^Sections 1 to 16 of National Labor Relations Act. 
^Section 9(a) of National Labor Relations Act, 



8 



to bargain collectively through representatives of 
their own choosing, and to engage in concerted 
activities, for the i3urpose of collective bargain- 
ing or other mutual aid or protection. ' ' 
29 U.S.C.A., Section 159^ 

In view of the express language of the statute 
allegedly violated and of the facts and circumstances 
involved, this decision of the Board raises the fol- 
lowing questions: 

(a) Whether the Board usurped the powers and 
functions of Congress by adding, through alleged con- 
struction, the following qualification to the proviso 
to Section 8(3) : 

'*No employer shall justify any discrimination 
against an employee for non-membership in a 
labor organization * * * if he has reasonable 
grounds for believing that membership was * * * 
terminated because of activity to secure a deter- 
mination pursuant to Section 9 * * *, at a time 
when a question concerning representation may 
appropriately be raised."^® 

(b) Whether the Board, by nullifying the "closed 
shop" contract and interfering in the internal affairs 
of a Union, usurped the powers and functions of 
Congress by adding, through alleged construction, the 
following specification of unfair labor practices to 
Section 8: 



^Section 7 of National Labor Relations Act. 

loBased on "Federal Labor Relations Bill of 1947" (S. 1126), 
as passed by the Senate (deleted in conference). See Special Sup- 
plement to Teller, "The Law Governing Labor Disputes and Col- 
lective Bargaining", pp. 71, 72, and "The New Labor Law" (The 
Bureau of National Affairs), p. C-20. 



'*It shall be an unfair labor practice for a 
labor organization or its agents — 

(1) to restrain or coerce * * * employees in 
the exercise of the rights guaranteed in Sec- 
tion 7 : * * * ; 

(2) to persuade or attempt to persuade an 
employer to discriminate against an employee 
with respect to whom membership in such organ- 
ization has been * * * terminated * * * because he 
engaged in activity designed to secure a deter- 
mination pursuant to Section 9 * * * at a time 
when a question concerning representation may 
be appropriately raised. "^^ 

(c) If in answering (b) above, it is held that the 
Board did not have the power to penalize the CIO, 
directly or indirectly, for alleged unfair labor prac- 
tices, whether the Board could require the vicarious 
expiation of the wrongdoing, if any, of the CIO 
through punishment visited upon the Petitioner. 

(d) If it is held that the Board has properly con- 
strued Section 8, and has not usurped the powers and 
functions of Congress, whether the CIO's alleged un- 
fair or malicious motivation deprives it of the legal 
right to discipline its members because of a plain and 
clear violation of its policy and pledge against war- 
time strikes. 



iiBased on "Federal Labor Relations Bill of 1947" (S. 1126) 
as passed by the Senate. Subsection (1) was modified and ex- 
panded in the New Act; subsection (2) was deleted in conference. 
See Special Supplement to Teller, "The Law Governing Labor 
Disputes and Collective Bargaining", p. 72 and "The New Labor 
Law (Bureau of National Affairs) p. C-21. 



10 



(e) If it is held that the Board has properly con- 
strued Section 8 and has not usurped the powers and 
functions of Congress, whether the Petitioner had the 
legal right and obligation to refuse to perform the 
admittedly valid "closed shop" provision of the 
agreement, if it knew that the CIO in exercising 
the legal right to discipline its members because of a 
plain and clear policy of its rules was motivated by 
malice and ill-will against those who sought to dis- 
place it as the representative of petitioner's employees. 

(f ) If it is held that the Board has properly con- 
strued Section 8, and has not usurped the powers 
and functions of Congress, whether members of a 
Union may immunize themselves against discipline 
because of a plain and clear violation of a Union's 
rules by manifesting their hostility to it. 

(g) If it is held that the Board has properly con- 
strued Section 8, and has not usurped the powers and 
functions of Congress, whether the Board sustained 
the burden of proving that Petitioner knew that the 
CIO had disciplined its members because of their 
anti-CIO activity, and not because of their plain and 
clear violation of the CIO's policies against wartime 
strikes, racial discrimination, etc. 

(h) If it is held that the Board has properly con- 
strued Section 8, and has not usurped the powers and 
functions of Congress, whether the Board sustained 
the burden of proving that the Petitioner made no 
bona fide effort to evaluate the evidence before it by 
showing that petitioner did not draw therefrom the 



11 

same inferences and deductions as the Board, and did 
not conclude, as did the Board, that the CIO in re- 
questing the discharges was acting in reprisal against 
the employees because of their anti-CIO activity. 

In the event that the construction which the Board 
placed on Section 8(1) (3) is held invalid as an usur- 
pation of the powers and functions of Congress, these 
other questions are also raised. 

(i) Whether the Board by nullifying the ''closed 
shop" contract deprives the petitioner and CIO of 
property without due process. 

(j) Whether the Board in ordering Petitioner to 
make whole the discharged employees for loss of pay 
deprives the Petitioner of property without due 
process. 

Some of the questions above outlined were first 
raised in the pleadings filed by the Board and the 
Petitioner. 

Board's complaint. 

The Board's complaint^^ (R. 4-10) in Paragraph V 
thereof, charged that the Petitioner interfered with 
the rights guaranteed the employees in Section 7 of 
the National Labor Relations Act by discharging and 
threatening to discharge employees because of their 
membership in and acti^dty in behalf of the AFL, 
or their failure or refusal to join or assist the CIO. 
(R. 6-7.) 



i20nly the allegations supported by the Board's decision are 
set forth. 



12 



In Paragraph VI of the complaint the Board 
charged that Petitioner had discharged Clyde Haynes, 
David Luchsinger, Frank Marshall, Sanf ord Moreau, 
Harry Smith, Edwin Thompson, Harold Lonnberg, 
Lincoln Olsen and William Sherman because of their 
activity in forming ''Colgate-Palmolive-Peet Company 
Employees' Welfare Association" (hereinafter called 
the Welfare Association), and their attempts to substi- 
tute the Welfare Association for the CIO as the bar- 
gaining representative of the employees, and had sub- 
sequent to the discharge above mentioned refused to 
re-employ them because of their said activities, and 
because of their membership in and activity on behalf 
of the AFL. Said paragraph also charged that the 
Petitioner had discharged twenty-eight other em- 
ployees because of their membership in and activity 
on behalf of the AFL and the A¥elfare Association. 
(R. 7-8.) 

In Paragraph VII of the complaint it was alleged 
as a conclusion that the charges set forth in Para- 
graph VI constituted discrimination in regard to hire 
and tenure of employment of the individuals dis- 
charged, and was intended to discourage membership 
in the AFL and the Welfare Association and to 
encourage membership in the CIO (R. 8-9.) 

Petitioner's answer. 

In its answer (R. 10-16) tJie Petitioner sets forth 
the ''closed shop" provision of the contract pursuant 
to which it acted, and which the Board seeks to set 
aside and nullify. The Petitioner has also averred in 



13 

its answer the facts concerning the discharged em- 
ployees' participation in the strike, and the action 
taken against them by the CIO because of this 
activity. 

The pertinent and material portions of Petitioner's 
answer are as follows : 

"5. Further answering said paragraph VI, 
respondent avers as follows : 

(1) At all times mentioned in said complaint 
and since the 9th day of July, 1941, there has 
been and there is now in existence a valid collec- 
tive bargaining agreement entered into by and 
between respondent and said" CIO. '^ Section 3 
of said collective bargaining agreement provides 
as follows: 

'Section 3. The Employer agrees that when 
new employees are to be hired to do any work 
covered by Section One (1), they shall be hired 
through the offices of the Union, provided that 
the Union shall be able to furnish competent 
workers, for work required. In the event the 
Union is unable to furnish competent workers, 
the Employer may hire from outside sources, 
provided that employees so hired shall make 
application for membership in the Union within 
fifteen (15) days of their employment. The 
employees covered by this agreement shall he 
members iyi good standing of the Union and the 
Employer shall employ no workers other than 
members of the Union subject to conditions 
hereinabove prescribed. In the hiring of new 
help for the warehouses, they shall be hired 
through the offices of the' CIO. (Italics ours.) 



14 



*'(2) At various times between July 30, 1945, 
and September 13, 1945, respondent has received 
communications from said" CIO "advising it 
that the persons named in said paragraph VI of 
said complaint had been suspended from member- 
ship in the" CIO ''and were no longer members 
in good standing in said" CIO ''and requesting 
that pending the determination of charges filed 
against said persons, said persons should be re- 
moved from respondent's employ. Respondent 
was advised by counsel that it had no alternative 
under the provisions of said section 3 of said, col- 
lective bargaining agreement but to remove said 
persons from its employ and pursuant to said 
advice it did remove said persons from its employ 
on dates set forth in said Paragraph VI of said 
complaint. (Italics ours.) 

6. Further answering said Paragraph VI, re- 
spondent avers that it did not remove or dis- 
charge Clyde W. Haynes, David Luchsinger, 
Frank Marshall, Sanford Moreau, Harry A. 
Smith, Edwin Thompson, Harold Lonnberg, Lin- 
coln Olsen and William Sherman because of their 
activity in forming the association, their attempts 
to substitute the association for the" CIO "as 
bargaining representative of respondent's em- 
ployees and/or because of their collective activity 
on behalf of respondent's employees. In this con- 
nection, respondent avers that said persons above 
named were removed from respondent's employ 
at the instance and request of the" CIO "because 
they were no longer members in good standing 
of said" CIO. 

"Further answering said Paragraph VI, this 
respondent avers that it has not refused nor does 



15 



it now refuse to reemploy any of the persons 
named in said paragraph VI of said complaint 
because of their membership in and activity on 
behalf of the" AFL, ''and in this connection re- 
spondent avers that because of its contractual 
obligations as herein set forth, it cannot reemploy 
said persons until such time as they again become 
members in good standing of said" CIO ''and 
that respondent's refusal to reemploy them is 
based on the fact that said persons are not mem- 
bers in good standing of said" CIO. 

"7. Further answering said paragraph VI, 
respondent is informed and believes and on said 
information and belief avers that Calixto Rigo, 
Robert Ashworth, Thomas Azevedo, Manuel 
Munoz, Nick Tate, Glen Hixson, Vincent Barboni, 
Martin Heppeler, Alden Lee, Felix Denkowski, 
Manuel Souza, Albert Zulaica, Ann Cerrato, Ina 
Mae Paige, Caetano Perreira, Rose Ros, and John 
Perucca, were charged by said" CIO "with vio- 
lating the constitution of said" CIO "and policy 
of said" CIO "as adopted by majority vote of 
its membership and more specifically with par- 
ticipating in a three-day work stoppage during 
the war, in violation of said" CIO's "wartime no- 
strike pledge, and in this connection, respondent 
is also informed and believes and on said informa- 
tion and belief avers that all of said persons 
above named pleaded guilty to the charge and are 
now on probation for one year and have been 
given permission to work out of the" CIO's 
"hiring hall and be employed in other concerns 
having contracts with said" CIO "and that said 
persons are not during said period of probation 
members in good standing of said" CIO. 



16 



** Further answering said paragraph VI, re- 
spondent is informed and beheves that Sebastian 
Ramirez, Terry Anderson, Henry Hellbaum, 
Henry Gianarelli, Ophelia Reyes, William C. 
Howard, Kay Norris, Genevieve Young, Frank 
Richmond and Manuel Allegre were also charged 
with the offense above specified but refused to 
stand trial and were expelled from said" CIO 
"and are not now members of said" CIO. (R. 
12-15.) 

Proceedings before the Board's Trial Examiner. 

After the filing of Petitioner's answer, a hearing 
was held on the matter from February 4 to 8, 1946, 
at San Francisco, California, before Horace A. 
Ruckel, Esq., Trial Examiner duly appointed by the 
Board's Chief Trial Examiner. (R. 21; 164.) 

At the opening of the hearing, the CIO made a 
motion to intervene, based on its interest in the con- 
tract here in question, and the motion was granted 
by the Trial Examiner. (R. 21; 168-176.) At the con- 
clusion of the Board's case, the Petitioner made a 
motion, in which it was joined by the CIO, to dismiss 
the complaint. The Trial Examiner denied the mo- 
tion, except as to certain allegations of the complaint, 
which alleged that the Petitioner removed notices 
of the AFL from its bulletin boards, that it kept 
AFL meetings under surveillance, and that it dis- 
criminatorily discharged Rose Gilbert. In these re- 
spects, the motion was granted. (R. 21.) 

At the conclusion of the hearing. Petitioner re- 
newed its motion to dismiss the complaint and at that 



17 



time the Trial Examiner reserved ruling thereon. 
(R. 21; 782; 783.) 

Trial Examiner's decision in favor of Petitioner. 

Thereafter, the Trial Examiner, in effect, granted 
Petitioner's motion to dismiss the complaint, when 
he determined in his intermediate report that Peti- 
tioner had not violated the National Labor Relations 
Act, and recommended to the Board that the com- 
plaint be dismissed. (R. 66-67.) 

The Trial Examiner exhaustively reviewed the evi- 
dence submitted to him and determined that although 
Petitioner learned during the course of events herein 
involved that many of its employees were dissatisfied 
with the CIO, and that the CIO may have been 
motivated in securing their discharge by a desire to 
ehminate the opposition, it also knew of other acts 
done by the employees which afforded the CIO valid 
grounds and good cause for terminating their mem- 
bership. The Trial Examiner, therefore, concluded, 
that the Petitioner was not called upon, at its peril, 
to assume the role of a judge for the purpose of deter- 
mining whether the CIO's motivation was lawful or 
unlawful, and that upon the whole record it could 
not be found that Petitioner knew that the CIO had 
requested the discharge of the employees because of 
their activities on behalf of the AFL and against the 
CIO. In so finding and in so concluding, the Trial 
Examiner stated; 

''That the contracting union might properly 
discipline members for participating in a strike 



18 



called in violation of union policy, hy S2ispending 
or expelling them, seems to the undersigned 
hardly open to question. A labor organization, no 
less than any other organization, cannot be denied 
the authority to compel compliance with the de- 
cisions of its membership. 'Good standing' in an 
organization implies something more than the 
mere payment of dues. 

*'It is sometimes difficult to determine where 
permissible activity on behalf of a rival organ- 
ization carries over into such overt acts of 
sabotage or obstruction directed against the con- 
tracting union, as seriously to impair the labor 
government in the plant and to invoke the union's 
discipline. It is for this reason, perhaps, that 
unions ordinarily seek to proscribe any activity 
on behalf of another labor organization, and to 
stigmatize it as 'dual unionism.' When this at- 
tempted proscription during an appropriate 
period, however, enlists the knowing cooperation 
of the employer, with the consequence that the 
offending member is discharged and deprived of 
his livelihood, the Board has not hesitated to find 
a violation of the Act. In each such instance, 
however, the Board has required knowledge by 
the employer, derived from information in its 
possession at the time it effectuated the discharge. 
This information has heretofore been of such a 
nature as not to require any interpretation of evi- 
dence, or any independerit investigation on its 
part, 

"The reasons for this seem clear. Any effective 
investigation which the employer might under- 
take would almost necessarily involve it in the 
internal affairs of the Union, and expose the re- 



19 



spondent to a charge of interference, restraint, 
and coercion in violation of the Act. In the in- 
stant case, for the respondent to determine to 
what extent participation in the strike of July 
31, and the non-payment of dues, contributed to 
the suspension of the employees involved, and to 
what extent their acivity on behalf of the A. F. 
of L. was a factor, the respondent would probably 
have had to question officers of the C.I.O. and to 
have had access to the minutes and records of the 
meeting or meetings at which the Union's de- 
cision to suspend them was made. Even then the 
respondent could hardly have escaped assuming 
the role of a judge. Such access to the records 
of a union, is, in effect, barred to him by the 
operation of the Act. In any event, he has no 
means of compelling it." (Italics ours.) (R. 63- 
65; 70 N.L.R.B. 1202 supra, at pp. 1229-1230.) 

Board's decision overruling Trial Examiner. 

The Board overruled the findings of its Trial Ex- 
aminer, and found, as stated before, that Petitioner 
had violated the National Labor Relations Act. The 
reasoning of the Board in so finding is epitomized in 
the following quotation taken from its decision: 

"The respondent's position, as revealed in its 
brief to the Trial Examiner, is that the Rutland 
Court and Portland Lumber cases are wrong; 
that it is for the Congress and not the Board to 
prevent employers from performing closed-shop 
contracts made pursuant to the express language 
of the proviso to Section 8(3) of the Act, if it 
appears desirable to prevent abuse of such con- 
tracts; and that in any event it would be 'unjust' 
to require the respondent to determine whether 



20 



the C.I.O.'s asserted motivation was ^merely 
ostensible and not real,' on the ground that the 
respondent could not 'necessarily have deduced' 
the C.I.O.'s true motive. We find no merit in 
these contentions. We are satisfied, particularly 
in view of the C.I.O.'s widespread and open cam- 
. paign among the employees during the preelec- 
tion period and the respondent's knowledge 
thereof, that the respondent made no bona fide 
effort to evaluate all the evidence before it when 
it allegedly decided, despite the C.I.O.'s failure 
to deny the obvious facts, to believe that the 
C.I.O. was not acting in reprisal against the com- 
plainants before their anti-C.I.O. activity." 
(R. 78, 79; 70 N.L.R.B. 1202, supra, at p. 1208.) 

From the foregoing, it is evident that three basic 
errors permeate the whole of the Board's decision: 

(a) That the Board had power under the 
National Labor Relations Act to prevent the 
coercion of employees by other employees or labor 
organizations. 

(b) That an act though lawful in itself is 
converted by a malicious and bad motive into an 
unlawful act. 

(c) That the obligor, in a lawful contract, 
performs the terms thereof at his peril unless he 
ascertains the true state of mind of the obhgee. 

Proceedings had after the decision of the Board. 

After the issuance of the decision and order of the 
Board, Petitioner filed a motion to reconsider, and 



21 



this was denied by the Board on November 6, 1946. 
(R. 85.) 

Thereafter, on December 30, 1946, Petitioner filed 
its petition for review. (R. 101-126.) 

On February 3, 1947, the Board filed its answer to 
said petition, and its request for the enforcement of 
its order. (R. 134-143.) 

On February 17, 1946, this Court made and entered 
its ex parte order permitting the CIO, the AFL and 
the discharged employees to intervene in the pro- 
ceeding. (R. 143-144.) 

Pursuant to this order, the CIO, the AFL and the 
discharged employees have filed their complaints in 
intervention herein. (R. 144-150; 151-156.) 

The complaint of the AFL and the discharged em- 
ployees prays for the enforcement of the Board's 
order. 

On March 1, 1947, Petitioner filed its answer to the 
complaint in intervention of the AFL and the dis- 
charged employees. (R. 156-163.) In its said answer. 
Petitioner prays for the dismissal of said complaint 
in intervention, and questions the right of the AFL 
and the discharged employees to intervene, on the 
ground that they have no interest in the subject mat- 
ter of the order made by the Board or its enforce- 
ment, until such time as a final order is entered de- 
creeing enforcement or denying it. (R. 159-160.) 
Petitioner submits that its prayer for dismissal of 
said complaint in intervention should be granted on 
the basis of the following authorities; 



22 



•■'It is settled that the Act creates no private 
right, and that there is no authority anywhere 
save in the Board itself to inaugurate proceed- 
ings for the enforcement of the Board's order 
or of the decree entered upon its petition. The 
award of back pay is not a private judgment or 
a chose in action belonging to the employee, and 
he has no property right in the award pending 
his actual receipt of it. Until that time the sub- 
ject matter remains exclusively under the admin- 
istrative authority of the Board and in control 
of the court, and outside interference of any sort 
would tend inevitably to shackle or impede the 
free exercise of their powers." 

N.L.B.B. V. Sunshine Mining Co. (9th CCA; 
1942), 125 Fed. (2d) 757 at 761. 

"The union has asked leave to intervene. This 
proceeding is in the public interest, prosecuted by 
an authorized agency of the Government, in fur- 
therance of an express policy and intent upon the 
part of Congress to establish, in behalf of the 
national public, a standard of conduct presum- 
ably productive of progress in protection of the 
public welfare. In such proceedings, private 
parties have no rightful place except as the court 
may desire to avail itself of helj^ful suggestions. 
Seeing no such necessity in this proceeding, we 
deny the application." 

Aluminum Ore Co. v. N.L.R.B. (7th CCA; 
1942), 131 Fed. (2d) 485 at 488. 



23 

NARRATIVE OF THE FACTS. 

The record of this proceeding establishes that there 
is no history of hostility on the part of the Petitioner 
to the organization or unionization of its employees. 

It is conceded that the Petitioner was engaged in 
interstate commerce and was thus subject to the pro- 
visions of the National Labor Relations Act (29 U.S. 
€. A. 151, et seq.) (R. 177.) 

The Petitioner is a manufacturer of laundry and 
toilet soaps and glycerine. (R. 177; 559.) It maintains 
and operates manufacturing plants in various parts 
of the United States, including one located at Ber- 
keley, County of Alameda, State of California. (R. 
177.) 

The events out of which this proceeding arises oc- 
curred at Petitioner's Berkeley plant. At the time of 
the happening of these events, Petitioner was manu- 
facturing glycerine for war purposes and was pro- 
ducing it at the rate of between four and five hundred 
thousand pounds per month. (R. 559.) The course of 
these events extends from July 26, 1945 to October 15, 
1945, but there are other occurrences which preceded 
and followed them, which have an important bearing 
on the case and which must of necessity be considered 
in arriving at a decision herein. 

Petitioner's employees were first organized in 1936. 
At that time and for approximately two years there- 
after, the I.L.A., affiliated with the American Federa- 
tion of Labor, was the bargaining agent for said em- 
ployees. Subsequently, on or about 1938, the employees 



24 



shifted their allegiance from the I.L.A. to the CIO. 
(R. 286; 625.) The CIO is, was and had been, since 
1938, the bargaining agent for Petitioner's employees 
in the proper bargaining unit. 

On or about July 9, 1941, the CIO, as the bargain- 
ing agent of Petitioner's employees, entered into a 
collective bargaining agreement with Petitioner. (R. 
221-223.) Section 3 of this contract has an important 
bearing on the issues presented by this case. Section 3 
reads as follows: 

"Section 3. The Employer agrees that when 
new employees are to be hired to do any work 
covered by Section One (1), they shall be hired 
thru the offices of the Union, provided that the 
Union shall be able to furnish competent workers 
for work required. In the event the Union is 
unable to furnish competent workers, the Em- 
ployer may hire from outside sources, provided 
that employees so hired shall make application 
for membership in the Union within fifteen (15) 
days of their employment. The employees covered 
hy fMs agreement shall he members in good 
standing of the Union and the Employer shall 
employ no ivorkers other than members of the 
Union subject to conditions herein above pre- 
scribed. In the hiring of new help for the ware- 
houses, they shall be hired through the offices of 
the Warehouse Union, Local 1-6, I.L.W.U." (R. 
787-788.) (Italics ours.) 

It has been admitted by the Board and by the AEL 
that the contract was, during the period covered by 
the events out of which this proceeding arose, valid; 
that the Board did seek to set it aside, and further 



25 

that the CIO was not dominated by the Petitioner. 
(R. 170-171; 271; 178-179.) 

The Petitioner employed at its Berkeley plant at 
or about the time of the events herein narrated, 313 
persons, exclusive of foremen, supervisory and exec- 
utive employees. (R. 422.) 

The management of the plant was in the hands of 
the following named gentlemen: Mr. Charles Wood, 
Mr. Bert W. Railey, Mr. C. A. Altman, Mr. C. R. 
Carter and Mr. Don E. Stanberry. (R. 180-182.) 
Mr. Wood was the purchasing agent for the respond- 
ent and in charge of its labor relations. (R. 180; 720.) 
Mr. Railey was vice president of the Petitioner, in 
charge of operations and all business of the Western 
Division of Petitioner, which includes Kansas City 
and Berkeley. (R. 181; 521.) Mr. Altman was plant 
superintendent (R. 182; 666) ; Mr. Carter was process 
supervisor (R. 181-182 ; 704) ; and Mr. Stanberry was 
production supervisor. (R. 182; 716.) 

Clyde W. Haynes, Dave Luchsinger, Frank Mar- 
shall, Sanford Moreau and Harry A. Smith were on 
July 26, and for some time prior thereto, members 
of the CIO, employees of Petitioner and shop stew- 
ards in charge of policing the contract above referred 
to on behalf of the CIO. (R. 193; 255-257.) 

Prior to July 26, 1945, certain matters which are 
of importance herein, had come to the notice of Mr. 
Wood and the management of Petitioner. The CIO 
had pledged itself not to engage in any strike or other 
work stoppage for the duration of the war. (R. 420- 



26 



421; 506-507.) This fact was and is in the knowledge 
of millions of persons throughout the United States 
and was known to Mr. Railey and Mr. Wood. (R. 
561-562; 725.) This should be borne in mind because 
of the work stoppage at Petitioner's plant which is 
hereinafter referred to. Another fact, known to Mr. 
Wood as well as to thousands of persons in the State 
of California and elsewhere, was the strong stand 
taken by the CIO against racial discrimination. (R. 
725-726.) Other matters were also known by Mr. 
Wood and the management which were not in the 
public knowledge. Mr. Wood knew that Messrs. 
Haynes, Luchsinger, Moreau and Smith had been ac- 
cused of working against the established policies of 
the CIO for a long time, including the CIO's policy 
against racial discrimination, and in this connection, 
Mr. Wood knew that in 1944 the stewards had been 
taken before the grievance committe and found guilty 
of conduct unbecoming stewards and given a repri- 
mand for their failure to take up the complaints of 
Negro members. (R. 725-726; 763-765.) Information 
had also come to Mr. Wood of the fact that the stew- 
ards had been accused of being remiss in carrying out 
their duties of office, and specifically that they had 
been negligent in appointing a chief steward as was 
apparently required by Section 10 of the contract 
above referred to. (R. 765.) Other information which 
had come to Mr. Wood with respect to the stewards 
was that they had failed to attend meetings of the 
executive council ; had failed to call or refused to call 
a meeting of Petitioner's employees for the purpose 
of discussing current contract negotiations, airing 



27 



grievances of the rank and file, and electing stewards 
for the coming year. (R. 766-768.) 

From the foregoing it may be gathered that the 
management of Petitioner knew prior to July 26, 1945 
that the CIO had adopted certain policies which it 
was enforcing thoroughly, earnestly and sincerely, 
as well as that there was certain dissatisfaction with 
the manner in which the aforementioned five stewards 
had performed their duties and enforced the policies 
of the CIO. 

On July 26, 1945, there occurred the first event 
which led to the filing of the charges here under con- 
sideration. On that date, twenty-eight to thirty em- 
ployees of Petitioner, including the five stewards, 
held a dinner meeting. (R. 189-90; 260-261; 286-287; 
382-383.) The record does not disclose whether other 
employees of Petitioner had cognizance of this meet- 
ing, but it is clear that Petitioner had no knowledge 
thereof, and this is admitted by the Board. 

This meeting was held for the purpose of discussing 
working conditions at Petitioner's plant, and for the 
purpose of outlining plans to sever connections with 
the CIO and affiliating or attempting to convince Peti- 
tioner's other employees to affiliate with some other 
local having a strong international. (R. 189-90; 260- 
261; 286-287; 408-409.) 

Among those present at the meeting, in addition 
to the five stewards, were William Sherman, a one- 
time business agent of the CIO, who had been de- 
feated for reelection (R. 190; 414), Edwin Thompson, 
Lincoln Olsen and Harold Lonnberg. (R. 190-191; 



28 

260-261.) These gentlenien are mentioned at tMs point 
because they all played important parts in the events 
hereinafter narrated, and were instrumental in bring- 
ing about the work stoppage at Petitioner's plant, 
hereinabove mentioned. 

It was determined at this dinner meeting that an 
interim organization be formed, pending affiliation 
with a local having a strong international, and it was 
given the name of ' ^ Colgate-Palmolive-Peet Company 
Employees' Welfare Association." Of the name given 
to this interim or stop-gap organization, Mr. Lonn- 
berg, one of the gentlemen above referred to, had 
this to say: ^'TJie title of it may seem misleading 
* * *." (R. 340.) 

On July 28, 1945, pursuant to plans formulated at 
the dinner meeting, Frank Marshall, one of the stew- 
ards, posted notices in several of the buildings in 
Petitioner's plant. (R. 191-192.) These notices read 
as follows: 

''Special meeting for all those interested in 
joining Employees' Welfare Association at the 
Finnish Brotherhood Hall, 1970 Chestnut Street, 
across from Burbank School, at 4 :15 P. M., Mon- 
day, July 30, 1945." (R. 213.) 

According to Mr. Marshall, the notices were posted 
by him at about 1:15 P. M., on July 28. (R. 192.) 
Sometime thereafter one of the notices was seen and 
read by Mr. Altman. (R. 667-668.) Later in the day, 
he received a 'phone call from Mr. Wood, and he ad- 
vised Mr. Wood of the fact of the posting of the 
notice and of the contents thereof. Mr. Wood did not 



29 



discuss the notice or its contents with Mr. Altman (R. 
668), and at the hearing testified that he imagined 
from what had been reported to him that the em- 
ploj^ees were perhaps getting up some sort of a wel- 
fare association for credit facilities, but did not asso- 
ciate it in any way with an organization set up for 
the purpose of collective bargaining. (R. 721-722.) 

Prior to the holding of the amiounced meeting, 
Messrs. Luchsinger and Olsen saw Mr. Altman and 
requested that he grant a '' lay-off" of two hours to 
the night shift employees to enal)le them to attend 
the meeting, and Mr. Altman acceded to the request. 
(R. 268-269.) There is nothing in the record to 
show that these gentlemen or any other i:)erson gave 
Petitioner's representatives, prior to the time that 
the meeting was held, any information with respect 
to its purpose, or that Petitioner, at that time, learned 
through any means the purpose thereof. The Board, 
nevertheless, infers that Petitioner must have learned 
the true purpose ''of the proposed meeting, or it 
would not have agreed to shut down the plant * * * 
so that the employees * * * could attend". (R. 69-70.) 
It is submitted that not only is the Board's reasoning 
invalid, but also that it is not entitled to rely on this 
inference because it could have procured direct evi- 
dence on the point through Olsen and Luchsinger. 

On July 30, 1945, at about 1 :45 P. M., a few hours 
before the time set for the meeting (R. 667), the cus- 
tomary I'outine of Petitioner's plant was disturbed 
by the appearance in Mr. Altman 's office of five of- 
ficers of the CIO. One of the CIO officers, Mr. Paul 



30 



Heide, handed Mr. Altman a letter. (R. 668-669.) This 
letter, Board's '^Exhibit 3" (R. 784-785) reads as 
follows : 

"July 30, 1945. 

Colgate, Palmolive, Peet Company, 
6th & Carlton Streets, 
Berkeley, California. 

Dear Mr. Altman : Att : Mr. C. A. Altman 

This is to notify you that charges have been 
preferred by this Union against the following em- 
ployees of your Company, and that they have 
been suspended from membership of this or- 
ganization pending a trial as provided for in the 
Constitution of our Local Union: 

Clyde W. Haynes, R.F.D. No. 2, Box 884, Wal- 
nut Creek, Calif. 
Dave Luchsinger, 434 65th Street, Oakland. 
Frank Marshall, Rt. 1, Box 241, Walnut Creek, 

Calif. 
Sanford Moreau, 1004 Jones Street, Berkeley, 

Cahf. 
Harrv A. Smith, Box 243, Rt. 6, Walnut Creek, 
CaHf. 

We, therefore, respectfully request that the 
above named employees of your Company be im- 
mediately removed from the job until such time 
as the charges against them have been determined 
by this organization. 

Trusting that we may have your cooperation in 
this matter, we remain, 

Very truly yours, 

/s/ Paul Heide. 

Paul Heide, Vice-President '^ 



31 



Mr. Altman was much upset by the contents of 
this communication and he went to Mr. Railey's office 
to confer with him. Thereafter, Mr. Altman returned 
to his office accompanied by Mr. Railey. Mr. Railey 
acted as spokesman for Petitioner. (R. 669-670.) The 
substance of what then occurred is contained in the 
following excerpts taken from the testimony of Mr. 
Railey : 

^^Q. Wil] you relate to the best of your recol- 
lection the gist or substance of that conversation? 

A. We told these people that this was — came 
as a great surprise to us, literally a bombshell, 
we knew nothing about what it was about, or any 
reason why these men should be suspended, and 
protested the thing because we told them they 
had iDeen loyal employees as far as we were con- 
cerned, and we had no charges against them. We 
were quickly reminded of our contract with the 
CIO which specified — which carried a paragraph 
to the effect that all employees must be in good 
standing with the union to work at our plant. 

Q. Was the contract produced? 

A. It was called to our attention, this par- 
ticular paragraph that I refer to. 

Q. Was the contract itself or a copy of the 
contract — 

A. (interposing) A copy of the contract was 
read at the time. 

Q. I will show you Board's Exhibit 7 and 
have you look at it. It purports to be a copy of 
a contract between the Respondent and the I.L. 
W.U., and see if you can pick out the clause you 
have reference to. 



32 

A. (Examining contract) Well, of course, I 
don't have reference to the number of it. I can 
find it. 

Q. I think I will save you time and tell you 
it is on the first page, Mr. Railey. 

A. (Indicating) That is the clause that I am 
referring to. 

Q. Will you specify the number of the clause 1 

A. Section 3. 

Q. You discussed that clause with the repre- 
sentatives of the CIO ? 

A. Yes, sir. 

Q. Did any further conversation or discussion 
ensue after that? 

A. These gentlemen that represented the CIO 
told us that these men must be discontinued im- 
mediately. They told us that they had sent a 
notice of their suspension to each man by regis- 
tered mail, each man that was involved. They told 
us if we didn't discharge them they would. 

Mr. Royster. I didn't get that answer, the 
latter part of it. 

(The answer referred to was read by the re- 
porter.) 

Q. (By Mr. Hecht) What else happened, 
Mr. Railey? 

A. It was finally agreed that we should call 
these five men into the office. When they came 
in 

Q. (Interposing) At this point you might 
name those five men, Mr. Railey. 

A. There was Mr. — 

Mr. Royster. They are in the letter. 

Mr. Hecht. Yes. 



33 



The Witness. Mr. Marshall, Mr. Moreau, Mr. 
Haynes, Mr. Smith — May I look at this again 
and check my memory? (examining docmnent) 
and Mr. Luchsinger. 

Q. (By Mr. Hecht.) And you called them 
into your office I 

A. We did. 

Q. And what occurred then? 

A. When they came to our office the CIO of- 
ficials handed each of them a carbon copy of 
a letter which they stated had been mailed to 
their homes. These gentlemen looked at the let- 
ters briefly and crushed them in their hands and 
stuck them in their pockets and walked out of the 
office. 

Q. No conversation between the five men? 

A. No conversation. 

Q. Between the five men and the CIO offi- 
cials ? , 

A. No. 

Q. Any statement to you by these five men? 

A. Not at the time, no. * * *" (R. 523-525.) 
******** 

"Q. (By Mr. Royster) Now, Mr. Railey, you 
testified that on July 30 you protested to the 
I.L.W.U. the requested suspension of these five 
stewards ? 

A. Yes. 

Q. Now, how did you make that protest, what 
did you say? 

A. Well, I couldn't tell you what I said. I can 
only give you a general idea of our feehng, which 
I can well remember, and what went on at the 
time. We might be classed as babes in the woods 



34 



on a thing like this, but it was something entirely 
new to us, and entirely unexpected, and when this 
letter was brought to me by Mr. Altman I admit 
that I was completely nonplussed. I didn't know 
what to do, or anything about it. At that time 
I didn't even recall the wording of the contract, 
which they maintained, and which our best ad- 
vice afterwards seemed to bear out, that they 
had a right to suspend people, and as long as they 
were under suspension, or not in good standing 
with the Union, that they couldn't work there. 

Q. Well, what did you say to the I.L.W.U. 
people by way of protest? 

A. We told them we had no reason for dis- 
charging these people as far as we were con- 
cerned. It was brought to our attention that we 
had nothing to do with the matter. 

Q. Did you ask them to reconsider their action 
at all? 

A. We pleaded with them not to take action 
because we needed work, and we needed products, 
a very vital business, and there was no feeling 
on our part in connection with it." (R. 538-539.) 

The record clearly indicates that nothing was said 
by anyone at this time which could have furnished 
information to Petitioner as to the causes underlying 
the suspension of the five stewards. 

The record discloses that after the dismissal of the 
five stewards, copies of Board's "Exhibit 4" (R. 785) 
were distributed to Petitioner's employees. (R. 473.) 
This exhibit is a mimeographed notice and reads as 
follows : 



35 

''ATTENTION I 
ALL WAREHOUSE UNION MEMBERS : 

An illegal meeting has been called by certain 
employees of Peet's, now imder suspension as 
members of this union for violation of the mem- 
bership oath, and other illegal acts. 

WARNING!! 

Any member of Local 6 who attends such il- 
legal meeting or participates in violations of our 
constitution, does so at the risk of losing mem- 
bership and employment. 

Greneral Executive Board 
Warehouse Union. 
Local No. 6, I.L.W.U." 

There is no evidence that Petitioner had knowledge 
of this notice or its contents. 

The meeting announced by the notices posted by 
Mr. Marshall was thereafter held at the time and 
place specified in said notices. (R. 196.) It was stipu- 
lated by the parties that a substantial majority of 
Petitioner's employees attended this meeting. (R. 256- 
257.) According to Mr. Marshall, the following mat- 
ters were acted upon at the meeting: 

1. The membership elected Messrs. Olsen, 
Sherman, Lonnberg and Thompson, as a commit- 
tee of four to negotiate with Petitioner's manage- 
ment for the reinstatement of the five stewards. 
(R. 196; 848-850.) 

2. The membership voted to sever relations 
with the I.L.W.U. and to form the employees' 



36 



welfare association, pending affiliation with a 
strong international. (R. 198-201; 848-850.) 

Mr. Marshall also testified that the resolutions pro- 
posing the above described acts were adopted by 
unanimous vote of the persons present. (R. 199-200.) 

The minutes of the meeting were recorded by Mr. 
Thompson, one of the committeemen, and are in evi- 
dence as Intervenor's Exhibit 2. (R. 468-469; 848- 
850.) These minutes disclose that a strike was con- 
templated in the event the five stewards were not re- 
instated, and in this connection the minutes read as 
follows : 

"Motion that we go back to work tomorrow, 
pending settlement of 5 Brother Shop Stewards 
laid off by management at request of I.L.W.U. 
officials. If shop stewards don't work, nobody 
works. Carried unanimously/' (R. 849.) (Italics 
ours.) 

The minutes further disclose that the withdrawal 
from the CIO was intended to be final and in all 
respects legal, and as to this, the following appears 
therein : 

''Wm. Stolba, L. Olsen, Dave Luchsinger, Wm. 
Sherman, E. H. Thompson, following general 
meeting, visited an attorney for legal reasons as 
to best way to complete severing relations with 
I.L.W.U. 1-6." (R. 849-850.) (Mr. Stolba, above 
named, was not a complainant in this proceeding.) 

An attorney was in fact consulted and it was pur- 
suant to his advice that certain telegrams hereinafter 



37 



mentioned were transmitted to Petitioner and to the 
CIO. (R. 469-470.) 

It should be noted at this point that it was stipu- 
lated that all the discharged employees, with the 
exception of Calixto Rigo, Caetano Perreira, and 
Rose (Gilbert) Schneider, (a) attended the meeting 
of July 30, (b) concurred in the action taken at this 
meeting, (c) participated in the work-stoppage which 
began at noon, July 31, and (d) knew of the CIO's 
no-strike pledge. It was further stipulated that the 
following named employees pleaded guilty to charges 
made by the CIO of having participated in a wartime 
strike in violation of the CIO's no-strike pledge: 
Glenn Hixon, Martin Heppler, Thomas Azevedo, 
Manuel Souza, Robert Ashworth, Felix Denkowski, 
Vincent Barboni, Alden Lee, John Perucca, Manuel 
Munoz, Ann Cerrato, Rose Ros, Ina Mae Paige and 
Nick Tate. (R. 70; 71-72; 202-203; 258; 274; 296; 
365-367; 404-405; 420-421; 506-.507.) 

The record also discloses that Albert Zulaica 
pleaded guilty to charges of violating the CIO's no- 
strike plege (R. 328-329), and Intervenor Exhibit 7 
(R. 867) sets forth that Caetano Perreiro and Calixto 
Rigo pleaded guilty to similar charges made against 
them. 

As stated above, telegrams were prepared and trans- 
mitted for the purpose of effecting the withdrawal of 
'the employees from the CIO. One was sent to the CIO 
and the other to the Petitioner. They are practically 
identical in wording and are dated July 30, 1945. 
They read as follows: 



38 



"You are hereby notified that more than 200 
employees of the Colgate-Palmolive-Peet Co., all 
heing former memhers of your Union and being 
more than 50% of such employees by action taken 
for such purpose, have and do hereby withdraw 
from your Union, sever connections and refuse to 
be further boimd by any of the laws, rules or 
regulations of the constitution of the I.L.W.U." 
(Sent to CIO; italics ours.) (R. 786.) 

"You are hereby notified of action taken by 
more than 200 employees of Colgate-Palmolive- 
Peet Co. All being former members of I.L.W.U. 
1-6 and being more than 50% of total employees 
have withdrawn and severed relations with 
I.L.W.U. 1-6 as collective bargaining agent." 
(Sent to Petitioner; italics ours.) (R. 786.) 

The gravamen of the charge made against Peti- 
tioner is that the employees were suspended from 
good standing by the CIO because of activity on be- 
half of the AFL, and that the Petitioner knew this 
when it removed them from the payroll, but the fore- 
going makes it abimdantly clear that these employees 
on July 30, 1945, served notice that from that date 
onward, they refused to maintain their membership 
in the CIO — such maintenance of membership being 
a condition precedent to employment in Petitioner's 
plant imder the contract above referred to. It is evi- 
dent, therefore, that these employees placed them- 
selves "not in good standing" at the very outset, and 
this being so, it cannot be contended that the CIO 
suspended them because of activity on behalf of the 
AFL. In connection with this matter, it should be 



39 



particularly noted that none of the employees ever 
repudiated the action evidenced by the above quoted 
telegram, except perhaps the seventeen who, as ap- 
pears from Intervenor's Exhibit 7, stood trial on 
December 17, 1945. 

On July 31, 1945, the committeemen above named, 
armed with the authority conferred upon them by the 
other employees, visited Mr. Altman and requested 
the reinstatement of the five stewards. Mr. Altman 
in answer to this request stated that the stewards 
could not be put back to work until they had been 
restored to good standing with the CIO. The commit- 
teemen then left Mr. Altman and went to Mr. 
Railey's office. Shortly thereafter, CIO representa- 
tives called on Mr. Altman and handed him a letter, 
which is Petitioner's Exhibit No. 16. (R. 671-673; 
846.) This letter reads as follows: 

''July 31, 1945 

Colgate, Palmolive, Peet Company 

6th & Carlton Streets 

Berkeley, California 

Dear Mr. Altman : Att : Mr. C. A. Altman 

This is to notify you that the employees named 
below have been suspended from membership in 
this union and are no longer members in good 
standing. 

Pending the determination of charges which 
have been filed against these persons in accord- 
ance with our Constitution and By-Laws, you 
are requested, in accordance with our Agree- 
ment, to remove these persons from your employ 



40 



until such time as you receive word from us in 
regard to their status as members in this union. 

Ed Thompson, 1034 Virginia Street, Berkeley, 
Calif. 

H. Lonnberg, 1245 — 60th Avenue, Oakland, 
CaUf. 

Lincoln Olsen, 623 Kearney, El Cerrito, Calif. 

William Sherman, 1515 Kains Avenue, Berke- 
ley, Calif. 

Your immediate attention to this request will 
be appreciated. 

Very truly yours, 

/s/ Paul Heide 
Paul Heide, Vice-President." 

It should be most specially noted that when the 
above letter was delivered to Mr. Altman, the four 
men named in it had already committed themselves 
not to maintain their membership in the CIO and to 
participate in a wartime strike in the event that their 
request for the reinstatement of the five stewards was 
denied. 

Upon receipt of this letter, Mr. Altman went to Mr. 
Railey's office where he found the committeemen 
conferring with Mr. Railey. (R. 673-674.) The com- 
mitteemen were reiterating their demand that the 
stewards be reinstated and advised Mr. Railey that 
unless these men were put back to work, they would 
not he responsible for the consequences. (R. 525-526.) 
Thereafter, the CIO representatives, as well as the 
five suspended stewards also entered Mr. Railey's 
office. (R. 527; 674-675.) 



41 



Mr. Lynden, President of the CIO, speaking for it, 
stated that the men who had been suspended would 
have to stand trial and if found innocent would be 
permitted to return to work and would be indemnified 
by the CIO for lost time. (R. 675.) 

It is clear from the record and from Intervenor's 
Exhibit 6 (R. 856) that these men refused to stand 
trial, thus further manifesting their already an- 
nounced intent not to maintain their membership in 
the CIO. 

The Petitioner's officers made inquiry at that time 
as to the nature of the charges brought against the 
committeemen but received for answer only the 
statement that they were not in good standing, and 
would have to stand trial. (R. 675-676.) Then there 
occurred in the presence of Petitioner's officers a 
verbal exchange between the nine suspended em- 
ployees and the CIO representatives — Mr. Lynden 
and Mr. Sherman acting as spokesmen for their re- 
spective factions. The substance of this exchange ap- 
pears in the following quotation taken from Mr. 
Railey's testimony: 

''Q. Can you relate the gist of this conversa- 
tion or talk between the two men? 

A. Well, to boil it down, the C.I.O. people 
told this negotiating committee that these people 
would have to stand trial on the charges against 
them, they could not work imtil those charges 
were disposed of, and they repeatedly reminded 
them, reminded this negotiating committee of the 
oaths that they took when they joined the C.I.O. 
and the consequence of a violation of those oaths, 



42 



and assured them that they had done everything 
they could to get increases for the employees of 
the Company, pointed out that the wages were 
frozen, nothing they could do about it, nothing 
that the Company could do about getting an in- 
crease. And at one stage of the meeting, the nego- 
tiating committee, without any further ado, 

walked out." ( R. 527-528.) 
******* 

''Q. Yes, there was a pretty acrimonious ex- 
change between the I.L.W.U. and the four com- 
mitteemen during part of that meeting, was there 
not, Mr. Railey? 

A. I don't know what is the right word to use 
for it. As I say, they were reminded of their 
oath, and of course, Mr. Sherman, who was 
speaking for the negotiating committee, accused 
the Union of failure to get increases for the men 
and for the people working there. And Mr. Lyn- 
den for the Union did bear down to the extent 
that they had taken an oath, and they had failed 
to observe it, and he pointed out what happened 
to a traitor for the United States, and they were 
a traitor to their Union, that they had the right 
to discipline their people. In fact, he said — this 
was when the war was still on — he said they had 
many times been called upon to discipline people, 
keep them working. And he said even in the 
shipyards they had been called upon to discipline 
people outside of working hours who were in- 
clined to drive fast, or drink, or something like 
that, to try to keep them working, because the 
government said, 'Unless you straighten your 
man out he can't work here.' And it was a defense 
of the C.I.O. by Mr. Lynden, natui'ally, and their 
policies^ and resentment on the part of Mr. Sher- 



43 

man, who was a former Business Agent, and 
whether he was disappointed or what I couldn't 
say, but at any rate, he was obviously not in 
sympathy with C.1.0." (ItaUcs ours.) (R. 545.) 

It is clear from what has been narrated before that 
when Mr. Lynden spoke of being "called upon to 
discipline people, keep them working," that Peti- 
tioner already knew that certain of its employees, in- 
cluding the stewards and the committeemen, had 
bound themselves to engage in a wartime work- 
stoppage violative of the CIO's no-strike pledge, and 
that the CIO was in possession of the facts with re- 
spect to this project, but it is also equally clear that 
Petitioner did not learn anything respecting the al- 
leged malicious and illegal motivation of the CIO, on 
which the Board relies to support its decision and 
order. 

The foregoing incident terminated at about 9:30 
a. m., and thereafter, the nine employees, as well as the 
CIO representatives, left the plant at Mr. Railey's 
behest. (R. 528-529.) At noon of the same day, that 
is, July ,31, 1945, the majority of Petitioner's em- 
ployees left their jobs and did not return to work 
until August 3, 1945. (R. 257-258; 529; 677.) 

During the morning of July 31st, representatives 
of the CIO distributed copies of the following circular 
in the plant. (R. 257) : 



44 



"Attention All Members 
I.L.W.U. No. 6 

Employed At Colgate, Palmolive, Peet Company 
Look Before You IjEap 

Because of a constant campaign of misinfor- 
mation and falsehoods carried on by Sherman- 
Marshall-Lundeberg & Co., many otherwise re- 
liable members of our Union are being misled 
down a blind alley, and into action that can only 
result in losses and hardship for the membership 
involved. The unscrupulous people who are at- 
tempting to promote strike action at this plant 
are traitors to our Union membership, our flag 
and our countiy! All members who join with 
them are jeopardizing their own reputation, their 
Union standing, their seniority and their jobs! 
Any strike at plant will bring an immediate 
directive from the Regional War Labor Board 
to return to work — and will resolve no issues — 
fancied or otherwise ! 

So that all members may understand the true 
situation, the following is a copy of agreement 
extending the provisions of the Union contract, 
including the requirement that only members of 
Warehouse Union, Local No. 6, I.L.W.U., in good 
standing may be employed by the company, it 
will be enforced by the entire membership of our 
Union, if it becomes necessary." (R. 789-790.) 

It will be noted that although this circular by its 
terms described the "unscrupulous" persons who were 
"attempting to promote strike action" as "traitors" 
to the "Union membership, our flag and our country", 
that the Board has misdescribed it merely as a 



45 



*' warning" to the " employees that they might lose 
their jobs by assisting the CIO 'traitors' ". (R. 71.) 
The unfairness of this misdescription is made obvious 
by the fact that the Board fails to mention the fact 
that the "warning'' was directed against participation 
in the strike. On the , other hand, the fact of the 
CiO's ample justiiication for issuing this ''warning" 
must be conceded when the terms of its pledge against 
wartime strikes are considered, in substance, this 
pledge stated the following : 

"On behalf of the entire membership of the 
International Longshoremen's & Warehousemen's 
Union we renew and give to President Harry S. 
Truman and the nation our solemn pledge that 
until the war is ended, with the unconditional 
surrender of J apan, we will not strike, stop work, 
or cease or slow production for any reason what- 
soever. 

"We reiterate that this is an unconditional 
pledge given in the knowledge that our first duty 
is to our nation, and that despite provocation we 
must take no action that will imperil our nation 
or cause the prolongation of the war, or cause 
the unnecessary loss of so much as one AUied life. 

"W"e further make the positive pledge that we 
will do everything in our power to shorten the 
war by lending ourselves to intelhgent solution 
of the manifold manpower problems and to the 
development of all possible means to speed pro- 
duction." (R. 420-421.) 

We beheve that this Court has judicial knowledge 
of the fact that the great majority in this country 



46 



shared the CIO's conviction that no action should be 
taken that would '^imperil our nation or cause the 
prolongation of the war, or cause the unnecessary- 
loss of so such as one Allied life." 

In connection with the foregoing it should be 
specially noted at this point that loss of membership 
and jobs was threatened not because of activity on 
behalf of another labor organization, but because of 
participation in an unauthorized strike. Thus, ample 
warning against this action was given all employees, 
including those who participated in the work-stoppage 
in disregard thereof and were eventually discharged 
for this reason. 

On the afternoon of July 31, 1945, Mr. Railey at 
the request of Mr. Thompson, attended a meeting at 
the Finnish Hall. There, Mr. Railey was again re- 
quested to reinstate the suspended employees and after 
some discussion he refused to do so on the ground 
that under the closed shop provision of the contract, 
the Petitioner was unable to do so until the men had 
been restored to good standing. (R. 529-531.) 

After Mr. Railey left, those present at the meeting 
reaffirmed their vote not to return to work until the 
stewards were reinstated and the meeting was re- 
cessed and thereafter resumed on the evening of 
August 2. (R. 258.) 

On August 2, a motion was approved dissolving 
Colgate-Palmolive-Peet Co. Welfare Association and 
to affiliate with the A.F.L. A further motion to return 
to work was also adopted at this meeting. (R. 258.) 



47 

On August 3, 1945, as above related, Petitioner's 
employees returned to work with the exception of the 
five stewards and the four committeemen. (R. 258.) 
It was also on August 3, 1945 that the A.F.L. filed a 
petition with the Board seeking certification as bar- 
gaining representative for Petitioner's employees. (R. 
549.) Notice of the filing of this petition came to the 
knowledge of Petitioner's management on or about 
August 8, 1945. (R. 549.) 

Mr. Wood in charge of Petitioner's labor relations 
returned to Berkeley on August 1, 1945, while the 
strike was still in progress. (R. 724-725.) He had 
been fully informed by Mr. Railey as to the events 
which preceded the strike, and had formed an opinion, 
though not a definite one, as to the probable cause 
for the suspension of the five stewards and based this 
opinion on information he had respecting the CIO 
no-strike pledge and the stewards' reported failure to 
enforce the anti-discrimination policy of the CIO. 
(R. 725.) The knowledge Petitioner's management 
had respecting the probable causes of the suspension 
of the five stewards and committeemen was further 
supplemented by news reports which appeared in the 
local press during the period of the strike. These 
reports appear to have featured the issue of racial 
discrimination. (R. 533; 677-678.) 

Petitioner's management did not rely solely on the 
interpretation given by the CIO representatives re- 
specting the rights and liabilities of the parties under 
Section 3 of the collective bargaining agreement. Mr. 
Wood returned to the plant on August 1, 1945 and by 



48 



that time, Mr. Railey had already consulted and ob- 
tamed from Petitioner's attorneys an opinion on this 
section of the contract. This opinion advised the 
management that Petitioner had to comply strictly 
with the terms of the section and that Petitioner could 
not take upon itself the prerogative of passing upon 
the merits of the action taken by the CIO in suspend- 
ing the stewards and the committeemen. Mr. Wood 
testified that Petitioner acted in accordance with the 
advice received from counsel. (R. 726-727.) 

On August 14, 1945, the Board gave notice of hear- 
ing of the AFL's petition for certification, and this 
notice was received by the Petitioner on August 17, 
1945. (R. 549.) 

The first unfair labor practices charge preferred 
by the AFL against Petitioner was filed with the 
Board on August 14, 1945. (R. 92-93.) The charge set 
forth that Petitioner was engaging in imfair labor 
practices, wdthin the meaning of the National I^abor 
Relations Act, in that it had terminated the employ- 
ment of the five stewards and the four committeemen, 
'^because of their refusal to adhere to policies o/" the 
CIO. (R. 92-93.) 

On August 17th the five stewards and the four com- 
mitteemen applied to Petitioner for reemplojonent. 
Mr. Wood, acting for Petitioner, rejected their apph- 
cation. (R. 728.) 

When this application for reemployment was made, 
the nine men involved had not repudiated their re- 
fusal to maintain their membership in the CIO. 



49 



We deem it appropriate, at this point, to call atten- 
tion to the conclusion drawn by the Board from the 
charge filed by the AFL against the Petitioner, and 
from the Petitioner's refusal to reinstate the stewards 
and the committeemen. The Board said : 

"* * *, the respondent, when it refused the 
reinstatement application of these two groups of 
discharged employees on August 17, 1945, was 
clearly apprised of the nature of the dismissals 
hy the formal charges of discrimination which the 
A. F. of L. had filed with the Board/' (R. 77-78.) 
(Italics ours.) 

It is hard to imagine how the Board concludes that 
the Petitioner was "clearly apprised" of the nature 
of the dismissals by a charge that stated that the men 
were discharged "because of their refusal to adhere 
to policies" of the CIO. The most that Petitioner 
could gather from this statement is that the employees 
had lost standing because of their failure to adhere to 
the CIO 's policy against war-time strikes. It is, there- 
fore, submitted that the Board's conclusion would 
have been infinitely more accurate had it stated that 
Petitioner learned nothing with respect to the alleged 
motivation of the CIO from the contents of the charge. 

On vSeptember 1, 1945, representatives of the CIO 
posted themselves outside of Petitioner's plant, prior 
to the start of operations, and engaged in what ap- 
pears to have been a mass checking of dues' books. 
(R. 709-712.) The record shows that there was a cus- 
tom of many years standing which permitted CIO 



50 

representatives to check dues' books and collect dues 
at Petitioner's plant. 

On the day prior to the dues' checking incident, 
to-wit, August 31, 1945, Mr. Gleichman, a CIO repre- 
sentative, came to Mr. Wood requesting the suspen- 
sion of a long list of employees and stated in support 
of his request that the persons involved were in had 
standing, that some of them had not paid their dues 
and that others were not members of the CIO. Mr. 
Wood refused to accede to this request and took the 
matter up with Mr. Heide, another CIO official. (R. 
728-732.) 

On the day following the dues' checking incident, 
that is, September 1, 1945, Mr. Altman received a 
letter from the CIO, which is Board Exhibit No. 10. 
(R. 792-793.) This letter reads as follows : 

''September 1, 1945 
Colgate-Palmolive-Peet Company, 
6th & Carlton 'Streets 
Berkeley, Cahfornia. 

Dear Mr. Altman : — Att : Mr. C. A. Altman 

This is to notify you that the employees named 
below have been suspended from membership in 
this Union and are no longer members in good 
standing. 

Pending the determination of charges which 
have been filed against these persons in accord- 
ance with our Constitution and By-Laws, you are 
requested, in accordance with our Agreement, to 
remove these persons from your employ until such 



51 

time as you receive word from us in regard to 
their status as members in this Union. 
Rose Ross Martin Heppler 

Esther Young Bill Howard 

Ina M. Paige Glen Hixon 

Ophelia Reyes Alden Lee 

Kay Norris Al Barboni 

Ann Cerrato Felix Denkowski 

Henry Giannarelli A. L. Richards 

Manuel Souza Terry Anderson 

Albert Zulaica K. Periera 

Mike Ramirez 

Your immediate attention to this request will 
be appreciated. 

Yours very truly, 
/s/ Paul Heide 
Paul Heide, Vice-President" 

Mr. Altman advised Mr. Wood of the receipt of 
this letter and he in turn informed Mr. Railey. (R. 
732-733.) The events which followed the receipt of 
this letter were related by Mr. Wood as follows : 

u J * * * Q^Yne down to the plant and found Mr. 
Railey in his office when I got there. I was showed 
the letter and we discussed the procedure we 
should follow to let out such a large group of 
men. 

Mr. Railey wanted to soften the blow as much 
as possible. A lot of them had been there a long 
time and he did not like them to think we were 
throwing them out without any consideration. 
So it was decided that we would call them into 
his office. And Mr. Altman took the responsibility 
of having all these people notified that they should 



52 



come down. It took some little time to gather 
them. But after they got there, wliy we showed 
them the letter and told them that we were very 
sorry but under the terms of our contract we had 
no alternative except to abide by its terms." 
(R. 733-734.) 

Prior to the dismissal of the persons named in Ex- 
hibit 10, Mr. Wood made inquiry from Mr. Heide as 
to the reasons why they were l^eing placed in bad 
standing and he testified that the only answer he got 
in response to this inquiry was that these persons had 
violated their oath, the Constitution and By-Ijaws. 
(R. 736.) 

As late as September 15, 1945, Mr. Wood had been 
unable to form a definite opinion as to the reasons 
underlying the suspension of these persons and in this 
connection he testified as follows : 

^'Q. All right. On September 1, 1945, or let 
us even carry it further, September 15, 1945, had 
you, Mr. Wood, formed any definite opinion for 
the reason why these men were being put in bad 
standing by the union ? 
A. No, I hadn't. I was somewhat bewildered. 
Q. What was the reason for your bemlder- 
ment? 

A. Well, I didn't think that it was only for 
union activities alone, because many people had 
not been disturbed that I had observed wearing 
buttons and passing out literature. 

Trial Examiner Ruckel. What kind of buttons 
and what kind of literature? 

The Witness. The A. F. of L. buttons. 



53 



Q. (By Mr. Hecht) Are some of those persons 

still in your employ, Mr. Wood? 

A. They are." (R. 736-737.) 
******* 

''Q. (By Mr. Hecht) Did those persons, Mr. 
Wood, to whom you have reference, continue to 
wear the A. F. of L. button and pass out the A. 
F. of L. literature up to and including the date 
of the election 1 

A. They did, sir. 

Q. Are those persons still in your employ? 

A. They are." (R. 738.) 

On September 26, 1945, a decision and direction of 
election was issued by the Board and on October 16, 
1945 an election, pursuant to the decision and direc- 
tion of election, was conducted among Petitioner's 
employees. (R. 549.) At this election the majority of 
votes w^as cast in favor of the CIO. (R. 550.) 

Some time in November, 1945, Mr. Wood was in- 
formed by George Squires, one of the CIO stewards, 
that the five stewards and the four committeemen had 
refused to stand trial; had been tried in absentia, 
found guilty and expelled on charges of dereliction of 
duty, failure to enforce the anti-discrimination policy 
and participating in a strike during the war. (R. 741- 
742.) In early January, 1946, Mr. Wood acquired 
knowledge from the CIO stewards, and the CIO pub- 
lication, "The Dispatcher", as to the status of the 
other complainants. He learned that some had pleaded 
guilty to the charge of participating in a strike and 
were on probation, and others had refused to stand 
trial on the same charge, Init, nevertheless, had been 
tried in absentia and expelled. (R. 742-743.) 



54 

In addition to the information obtained from the 
stewards and "The Dispatcher", Mr. Wood had also 
received copies of the written decisions of the CIO 
trial committees before whom the employees had been 
tried. (R. 762.) These decisions are in evidence as 
Intervener's Exliibits Nos. 6 (R. 856) and 7. (R. 867.) 

The following extract taken from Intervener's Ex- 
hibit 6 establishes that Petitioner's management would 
have been most ill-advised if it had attempted to 
determine for itself, in the absence of a full dress 
inquiry into the internal affairs of the CIO, the causes 
underlying the suspension of complainants: 

*'One thing we want to make very clear. We do 
not hold it against these men, or any of the other 
defendants, that they ai)parently joined the A. F. 
of L. Chemical Workers Union. If they thought 
the men could get a better deal through the A. F. 
of L., that was their right under the Wagner Act, 
as we understand it, just as A. F. of L. members 
have the right to change to the CIO if they want 
to. After all, that is a question for the rank and 
file to decide. Undermining union policies is 
something else. Policies such as political action, 
equal rights for all races and colors, and the war- 
time no-strike pledge are fimdamental to the wel- 
fare of the union and its members. The union 
cannot and should not tolerate such conduct." 
(R. 865-866.) 

It is submitted that the record herein shows a 
situation where the admitted j^articipation by the dis- 
charged employees in an "outlaw" strike furnished 
the CIO with valid grounds and good cause to suspend 



55 

or expel them from membership, and to validly invoke 
the closed shop provisions of the collective bargaining 
agreement. We submit that the malicious motivation 
of the CIO, even if it had been proven, does not, under 
established law, convert the enforcement of its legal 
rights into an unlawful act, and that, therefore, the 
issue of the CIO's motivation is a false one. 



ASSIGNMENTS AND SPECIFICATIONS OF ERROR. 

1. The Board erred in its refusal to dismiss the 
complaint, because there is no evidence to establish a 
violation of Section 8(1) (3) of the National Labor 
Relations Act. 

(This assignment depends for its validity on 
assignments 2 to 10 below.) 

2. The Board erred in its decision and order, in 
that it thereby construed the National Labor Relations 
Act as giving it power to prohibit the coercion of 
employees by other employees or labor organizations. 

(This assignment discussed, infra, pp. 58-84.) 

3. The Board erred in its decision and order, in 
that it thereby construed the National Labor Relations 
Act as giving it power to find a labor organization 
guilty of unfair labor practices and to regulate the 
affairs of such labor organization. 

(This assignment discussed, infra, pp. 58-84.) 

4. The Board erred in its decision and order, in 
that it thereby has construed the National Labor Rela- 



56 



tions Act as permitting it to define and punish the 
unfair labor practices of labor organizations. 

(This assignment discussed, infra, pp. 58-84.) 

5. The Board erred in its decision and order, in 
that it has so construed the National Labor Relations 
Act as to empower it to prohibit the performance of 
an admittedly valid ' ' closed shop ' ' contract because of 
alleged unfair labor practices committed by the con- 
tracting union. 

(This assignment discussed, infra, pp. 58-84.) 

6. The Board erred in its decision and order in 
finding and concluding that the CIO's alleged unfair 
or malicious motivation deprives it of the legal right 
to discipline its members because of a plain and clear 
violation of its policies. 

(This assignment discussed, infra, pp. 85-91.) 

7. The Board erred in its decision and order in 
finding that the Petitioner had a legal right and obli- 
gation to refuse to perform an admittedly valid 
"closed shop" contract, because it allegedly knew the 
CIO 's allegedly malicious motivation in requesting the 
discharge of employees under the terms of said 
"closed shop" contract. 

(This assignment discussed, infra, pp. 76-80.) 

8. The Board erred in its decision and order be- 
cause there is not sufficient proof of the 'CIO's alleged 
unfair or malicious motivation in requesting the dis- 
charge of the employees pursuant to the terms of the 
"closed shop" contract. 

(This assignment discussed, infra, pp. 91-].23.) 



57 



9. The Board erred in its decision and order be- 
cause there is no proof that the Petitioner knew that 
the CIO had requested the discharge of the employees 
because of their anti-CIO activity. 

(This assignment discussed, infra, pp. 91-123.) 

10. The Board erred in its decision and order 
because there is no proof that the Petitioner made no 
bona fide effort to evakiate the evidence before it, and 
in failing to determine, as did the Board, that the CIO 
was motivated by a desire to punish the employees 
because of their anti-CIO activity when it requested 
their discharge. 

(This assignment discussed, infra, pp. 91-123.) 

11. The Board erred in its decision and order, in 
that said order deprives the Petitioner of property 
without due process of law, inasmuch as Petitioner is 
called upon under the terms of said order to make 
whole the discharged employees for any loss of pay 
they have suffered since the termination of their em- 
ployment, and deprives Petitioner of its property 
rights and privileges accruing to it under its contract, 
contrary to the Fifth Amendment to the Constitution 
of the United States. 

(This assignment depends for its validity on 
assignments 2 to 10 above.) 



58 



ARGUMENT. 

1. THE PETITIONER WAS ENTITLED TO A DISMISSAL OF 
THE COMPLAINT BECAUSE THE NATIONAL LABOR RELA- 
TIONS ACT DID NOT PROHIBIT THE COERCION OF EM- 
PLOYEES BY LABOR ORGANIZATIONS, AND THEREUNDER 
A LABOR ORGANIZATION COULD LAWFULLY REQIHRE 
THE PERFORMANCE OF A "CLOSED SHOP" CONTRACT 
EVEN THOUGH SUCH PERFORMANCE RESULTED IN THE 
COERCION OF EMPLOYEES. 

Petitioner's reasons for requesting the Court to reconsider the 
question resolved by it in the case of Local 2880, etc., v. 
N.L.R.B., 158 Fed. (2d) 365. 

The argument above summarized was rejected and 
held invaUd by this Honorable Court in Local 2880, 
etc. V. N.L.R.B. (1946), 158 Fed. (2d) 365 (cert, 
granted; 331 U.S. 798, 91 L. Ed. 1077). On the other 
hand the Circuit Court for the Seventh Circuit, in 
Aluminum Co. v. N.L.R.B. (1946), 159 Fed. (2d) 523, 
accepted this argument and held it valid. It had been 
hoped that the conflict created by these two decisions 
would be resolved by the Supreme Court of the 
United States in its expected review of Local 2880, 
etc. V. N.L.R.B., supra; however, this expectation can- 
not be reahzed because Local 2880 's petition for cer- 
tiorari was dismissed, at its request, on January 5, 
1948, and the case has been removed from the calendar 
of the Supreme Court. 

The Supreme Court's failure to resolve this con- 
flict and the necessity of protecting the record, compel 
us to raise this question and to respectfully request 
the further consideration thereof by this Court. 

In our study of this Court's opinion in Local 2880, 
etc. V. N.L.R.B., supra, we note that the Court did 



59 

not discuss or mention the pertinent Congressional 
reports which accompanied the adoption of the Na- 
tional Labor Relations Act. We feel that these reports 
militate against the position taken by the Board on 
this question of law. Therefore, our discussion of this 
point will concern itself for the most part with the 
history of the Act and these reports. 

Statement of Board's argument in support of its right, under the 
National Labor Relations Act, to declare unions ineligible 
to be parties to ' ' closed shop ' ' contracts. 

This Court has stated the position of the Board on 
this question as follows : 

^'The Board's construction of the proviso of 
Section 8(3) with relation to Section 7 conferring 
on * * * all employees the right 'to bargain col- 
lectively through representatives of their own 
choosing' as not warranting a discharge for activi- 
ties at an election for such choice is obviously 
rational * * *" (158 , [Fed. (2d) at 368.) 

The reasoning of this Court in upholding the views 
of the Board is, we think, set out in the following 
portions of the opinion: 

''However, we are of the opinion that it is the 
only interpretation to be given the proviso of 
Section 8(3) for closed shop contracts. Such con- 
tracts are generally drawn, as here, in anticipa- 
tion that during their currency there will be 
elections at which the employees will be given 
their opportunity to choose the bargaining agent 
through whom, as provided in Section 7, they will 
'bargain collectively' with their employers. If 
they are to exercise this right under Section 7 in 



60 



terror em of discharge, because its exercise may 
displease the union successful at the election, that 
'labor organization' will be 'assisted by * * * 
action defined in * * * Section 8(1) as an unfair 
labor practice' in violation of the express lan- 
guage of the proviso." (158 Fed. (2d) 368.) (Ital- 
ics ours.) 
******* 

"We construe the discharge provision of the 
instant closed shop contract as not intended to 
include an obligation on the employer to discharge 
an employee for the exercise of the latter 's right 
to seek at an election of his bargaining agent a 
labor organization other than the one having an 
existent closed shop contract. If the union is so 
organized that exercising such right at the elec- 
tion prevents an employee, otherwise complying 
with the union's membership requirements, from 
remaining in the membership — that is, if the 
union is organized so to compel the closed shop 
employer to commit an unfair labor practice — 
such a union is ineligible to become a party to a 
closed shop contract under the provisions of Sec- 
tion 8(3)." (158 Fed. (2d) 369.) (Italics ours.) 
******* 

"The contention is unwarrantable. The peti- 
tioner does not deny that the employee is so held 
in terrorem of violation of the miion's require- 
ments of its members. Such fear is obvious and 
Congress well may be presumed to have recog- 
nized its existence as a factor in making effective 
all proper closed shop contracts. Because it is an 
effective factor as to all the legal incidents of a 
closed shop contract nonetheless makes such fear 
a factor in a union's wrongful attempt to defeat 
the Congressional purpose to democratize the em- 



61 



ployees' organization by a free election of their 
bargaining agent." (158 Fed. (2d) 370; Opinion 
on Petition for Rehearing.) 

We understand from the foregoing the Board's ar- 
gument, reduced to the simplest terms, to be as fol- 
lows : 

A labor organization which so coerces an employee 
as to cause him to exercise the rights guaranteed by 
Section 7 m terrorem of discharge, is ineligible to be- 
come or remain a party to a closed shop contract, and 
a discharge by the employer pursuant to a closed shop 
contract vitiated by the ineligibility of the coercing 
union is assistance of the type defined by the Act as 
an unfair labor practice. We also understand from 
this that it is immaterial in the Court's view whether 
the vitiating conduct occurs before or after the exe- 
cution of the closed shop agreement. 

Major premise of Board's argument depends for its validity on 
the truth of the assumed proposition that the coercion of 
employees by unions has been prohibited by Congress. 

In our opinion the Board's argument depends for 
its validity on the proposition that a labor organiza- 
tion which coerces employees '4s ineligible to become 
a party to a closed shop contract", and this premise 
itself depends for validity upon the further assumed 
proposition that Congress intended to make illegal 
the coercion of employees by other employees or labor 
organizations. In other words, the Board's right to 
declare the ineligibility of a union and to deprive it 
of its contract must be predicated on the assumption 
that the coercion of employees by labor organizations 



62 



offends against some mandate of Congress; otherwise 
this would be deprivation of property without reason 
or cause. We say that this is an "assumed" premise, 
because there is nothing in the express language 
of the National Labor Relations Act which declares 
that employees are afforded protection thereunder 
against interference from persons other than em- 
ployers or those acting on their behalf. The only 
unfair labor practices denounced and defined by 
express language in the Act are those committed 
by employers. The Court, therefore, no doubt had 
this implied or assumed premise in mind when it 
stated that "Congress well may be presumed to have 
recognized" the existence of fear induced by union 
coercion as a factor in making effective closed shop 
contracts. (158 Fed. (2d) 370.) The Court's state- 
ment is a correct one, but there is no necessity of pre- 
suming that Congress recognized this factor because 
Congress did in fact expressly recognize it. However, 
Congress, in expressly recognizing the fear factor in- 
duced by union coercion, also expressly declared that 
it did not intend to and would not make any provision 
in the National Labor Relations Act to protect em- 
ployees from such coercion and from the fear thereby 
induced. 

The premises of the Board's argument are false, because Con- 
gress expressly stated that it did not intend to prohibit the 
coercion of employees by unions or to provide for the regula- 
tion of unions. 

No clearer statement of Congressional purpose not 
to forbid coercion of employees by employers or labor 
organizations is to be found than in the express Ian- 



63 



guage of the Congressional reports which accompanied 
the adoption of the National Labor Relations Act. We 
refer the Court in this connection to the following 
taken from these reports: 

^^ Regulation of employees and labor organiza- 
tions is no more germane to the purpose of this 
hill than tuould he the regulation of employers 
and employer associations in connection with the 
organization of emloyers in trade associations. 

There is an even more important reason why 
there should he no insertioyi in the hill of any 
provision against coercion of employees hy em- 
ployees or lahor organizations ; courts have held 
a great variety of activities to constitute * coer- 
cion'; a threat to strike, a refusal to work on 
material of non-union manufacture, circulariza- 
tion of banners and pulications, picketing, even 
peaceful persuasion. In some courts closed shop 
agreements or strikes for such agreements ure 
condemned as ^coercive' ; thus, to prohibit em- 
ployees from coercing their own side would not 
merely outlaw the undesirable activities which the 
word connotes to the layman, hut would raise in 
federal law the ghosts of many much-criticized 
injunctioyis issued hy courts of equity against 
activities of labor organizations — ghosts which it 
was supposed Congress had laid low in the 
N orris - LaGuardia Act." (Italics ours.) See 
Senate Reports, Vol. 9877, 74th Congress, First 
Session, R. 573, to accompany S. 958, May 2, 1935, 
at page 16. 

For the Board to declare a union ineligible to be- 
come party to a ''closed shop" contract and to deprive 
it of its contract is, in effect, regulation by the Board 



64 

of labor organizations, and such regulation of labor 
organizations, the above Congressional report tells us, 
is not ''germane to the purposes of" the National 
Labor Relations Act. To prohibit the performance 
of a ''closed shop" contract because it results in the 
coercion of employees by labor organizations, is in 
effect, "to prohibit" employees and unions "from 
coercing their own side," and this prohibition, it is 
clear, was not the intent or purpose of Congress. Con- 
gress having expressly and emphatically declared that 
it did not intend to regulate unions, and having ex- 
pressly defined and denounced in the Act itself only 
the unfair labor practices of employers, there is, we 
submit, no excuse, reason or cause for impljdng, pre- 
suming or assuming such a regulation or such a pro- 
hibition. 

It is clear, therefore, that in coercing its own side 
a union did not, prior to the enactment of the Taft- 
Hartley Act, indulge in culpable conduct, violative of 
any Congressional mandate. Accordingly, it is respect- 
fully submitted that the major premise of the Board's 
argiunent on this question of law is false, and that 
therefore this Court is not required, in this instance, 
to accept the "experienced judgment" of the Board. 

It is also clear that since such conduct is not 
culpable that there is no cause or reason for declaring 
the ineligibility of a union as a party to a "closed 
shop" contract and to deprive it of its contractual 
rights. This being so, it follows that the second or 
minor premise of the Board's argument is also false. 



65 



It is likewise patent, that if there has been no 
vitiating conduct that when a discharge is made by 
an employer pursuant to a "closed shop" contract, 
a labor organization is not, as the Board concludes, 
*' * assisted by * * * action defined in (Section 8(1) 
as an unfair labor practice' in violation of the express 
language of the proviso" of Section 8(3). 

Moreover, if there has been no assistance given 
to the union by the employer through any unfair 
labor practice, the contract is valid under the proviso 
and both the union and employer may insist on its 
performance. 

The background of the Wagner Act and the reasons for its one- 
sided and defective approach to the problem sought to be 
resolved. 

We submit in the light of the foregoing that the 
"Congressional purpose to democratize the em- 
ployees' organization by a free election of their bar- 
gaining agent", mentioned by this Court, was, the 
Congress decided, to be implemented by elections free 
from employer interference, not elections free from 
union coercion, and this one-sided treatment of an 
old problem was the basic and the much criticized de- 
fect of the Wagner Act. The "one-sidedness" of the 
Act has long been recognized. 

"An additional reason constantly assigned for 
opposition to the act is its alleged one-sidedness 
in providing for unfair labor practices commit- 
table by employers without also providing for like 
employee unfair labor practices. Insistence upon 
this point has induced the legislatures of the 



66 



states of Massachusetts, Michigan, Minnesota, 
Pennsylvania and Wisconsin to provide for un- 
fair labor practices committable by employees. 
Proponents of the act on the other hand have 
argued against the contention that the act is un- 
fair because one-sided. The answer of the Act's 
proponents appears to be a twofold one. In the 
first place it is asserted that the common law and 
statute law of the several states and the Fed- 
eral government are now adequate to deal with 
unlawful activities carried on by labor. In the 
law of torts, crimes and in the labor injunction 
along the various other legal sanctions are found 
adequate weapons to deal with labor activities 
which transcend the boundaries of legality." 
Labor Disputes and Collective Bargaining 

(1940), Teller, Volume Two, Section 244, p. 

695. 

The problems and abuses which were to result from 
this defect were not then foreseeable. It is common 
knowledge that when the Act was drafted and adopted, 
that the schism in the labor movement, which cul- 
minated in open warfare between the AFL and CIO, 
had not occurred and was not anticipated. Therefore, 
Congress had no reason to provide in the Wagner 
Act a remedy to cure e^dls which might arise as a 
result of the then not anticipated breach in the ranks 
of labor. At the time this legislation was enacted 
it was anticipated that the contest would be only be- 
tween organized labor, on the one side, and em- 
ployers, nonunion employees and company domi- 
nated "employee representation plans", masquerad- 



67 



ing in the guise of so-called "independent unions", 
on the other. Therefore, employees were under this 
Act not to be free to remain unorganized or free from 
concerted union activities to organize them. The free- 
dom or democratization intended was only freedom 
from employer autocracy. Those who drafted the 
Wagner Act knew, as the above quoted report dis- 
closes, that employers had been only too anxious to 
outlaw the *' closed shop" contract as coercive, and 
too prone to attempt to defeat the organization of 
their employees by pretending to be protagonists of 
the nonunion man's right to remain unorganized. The 
right of the nonunion employee, usually championed 
by his employer, to remain unorganized, has been 
generally held to be, and to present a false or 
meritricious issue. 

"Invoking section 8(3) of the National Labor 
Relations Act instead of sections 921 and 923 of 
the California Labor Code in support of the trial 
court's injunction, plaintiff seeks to revive an 
issue settled by this court in McKay v. Retail etc. 
Union No. 1067, 16 Cal. 2d 311 (106 P. 2d 373) ; 
Shafer v. Registered Pharmacists Union, 16 Cal. 
2d 379 (106 P. 2d 403), and C. S. Smith Met. 
Market Co. v. Lyons, 16 Cal. 2d 389 (106 P. 2d 
414). It was there contended that the concerted 
acti\dties were unlawful on the ground that their 
purpose was to compel the employer to violate 
sections 921 and 923 of the California Labor 
Code which. Like the National Labor Relations 
Act, gives employees the right of association, self- 
organization, and designation of representatives 
free from the interference of employers. In re- 
jecting this contention in Shafer v. Registered 



68 



Pharmacists Union, supra, the court stated: 'The 
argument is * * * made that it is absurd to sup- 
pose that these provisions were written with the 
intention of restraining the employer from in- 
fluencing his employee, while at the same time 
conferring upon other individuals the right ''to 
coerce" the same employee through the employer. 
But the right of workmen to organize for the 
purpose of bargaining collectively would be effec- 
tually thwarted if each individual had the abso- 
lute right to remain "unorganized" and using the 
term adopted by the appellants to designate the 
economic pressure applied against them through 
the employer, coercion may include compulsion 
brought about entirely by moral force. Certainly 
such compulsion is not made contrary to public 
policy by any statute of this state and is a proper 

exercise of labor's rights.' " 
******* 

"The dilemma in these cases arises from a fail- 
ure to understand that the basic conflict is between 
the union and nonunion workers. Until that con- 
flict is resolved, the employer is in the unhappy 
position of a neutral suffering its repercussions. 
When he seeks to enjoin concerted union activi- 
ties for a closed shop on the ground that their 
purpose is to drive him to unlawful interference 
with his nonunion employees, he is in fact seeking 
to translate a conflict Ijetween groups of workers 
in which union workers have an even chance of 
achieving their objective lawfully, into a conflict 
in which he w^ould become the contestant ad hoc 
for the nonimion workers, armed with a formula 
that would make the very objective of the union 
workers unlawful. The real issue of the closed 
shop would thus he shunted off the field to he 



69 

replaced hy the meretricious issue of the non- 
union workers' right to freedom from employer 
interference. That right, evahiated within the 
context of the right of workers and unions to take 
concerted action for a closed shop, does not in- 
ckide the right to freedom from the risk of em- 
ployer interference induced by the pressure of 
such action. Employees are not free from con- 
certed union activities to organize them directly; 
they are free to resist such activities." (Itahcs 
ours.) 

Park & T. I. Corp. v. Int. etc. of Teamsters 
(1946), 27 Cal. (2d) 599 at 609-612, 165 Pac. 
(2d) 891, at 897-899. 

The struggle between the CIO and AFL, engen- 
dered, as this Court knows, many abuses, including 
the denial of the democratic processes in unions to 
rank and file members. Organizations on both sides 
made frequent use of "closed shop" contracts to 
obtain the discharge of dissident employees for the 
purpose of perpetuating themselves in power. 

The Ansley case. The Board recognizes that the Act does not 
prohibit the coercion of employees by unions. 

The problem created by this abuse of the ''closed 
shop" contract first received full consideration by 
the Board in Ansley Radio Corp. (1939), 18 N.L.R.B. 
1028, some five years after the adoption of the Wag- 
ner Act. There the Board, fully aware of the purpose 
and history of the Act, determined in strict accord- 
ance with the exj)ress terms thereof and with the 
clear and express declaration of purpose contained in 
the congressional reports, that the contracting union 



70 



could invoke the ''closed shop" provisons of the con- 
tract to secure the discharge of dissident members 
advocating another organization as the bargaining 
representative. In making this holding the Board 
gave express consideration to the history of the Act, 
and in so doing, stated the following: 

''The freedom guaranteed employees under the 
Act to form, join, and assist labor organizations 
and to bargain collectively through representa- 
tives of their own choosing, without economic or 
other compulsion by the employer, is qualified by 
the proviso clause of Section 8(3). The legisla- 
tive history of this clause as well as its language 
shows that its purpose was to leave undisturbed 
by the Act, except in two instances, a form of 
industrial relationship which had won increasing 
acceptance by employers and had found widening 
approval in the law of the sevei'al States. The 
legislative intent and policy were to withhold 
what rights individual employees otherwise might 
have had under the Act but for the proviso in 
order to permit organized labor to seek and enter 
into this relationship where the employer was 

willing to do so and local law offered no obstacle." 
* It * * * * * 

"The proviso clause declares that 'nothing in 
this Act' shall preclude an employer from 'mak- 
ing' a closed-shop agreement with a labor or- 
ganization 'if such labor organization is the 
representative of the employees as provided in 
section 9(a), in the appropriate collective bar- 
gaining unit covered by such agreement when 
made.' Although the proviso relates specifically 
only to the making of the agreement, the neces- 
sary implication is that the employer is protected 
against a charge of discrimination under Section 



71 

8(3) in carrying out the closed-shop agreement 
as made, at least where, as here, the agreement is 
for a reasonable period of time." {Ansley Radio 
Corp., supra, 18 N.L.R.B. 1059-1061.) 

The Act's failure to prohibit the coercion of employees by unions 
resulted in the recognition of the necessity of congressional 
intervention to democratize employees' organizations. 

The abuse sanctioned by the Act and recognized by 
the Board in its above quoted opinion, developed to 
such proportions that many proposals to amend the 
Act were made by students of labor and its problems. 
One of many such proposals was made by Ludwig 
Teller in his work, '^A Labor Policy for America." 
(Baker, Voorhis & Company, Inc.; 1945.) The Wag- 
ner Act's defects and its limited purpose is stated as 
follows by Mr. Teller: 

•'It never hurts to reiterate that the Wagner 
Act is not a full blo^^Ti labor relations statute. 
It deals with only one segment of labor policy. 
Its limited purposes are to protect employees 
against employer interference with their right to 
form and join labor unions, and to encourage 
collective bargaining between employers and bar- 
gaining agents representing a majority of em- 
ployees in an appropriate bargaining unit." 
(Italics ours.) 

A Labor Policy for America, pp. 36-37. 

Among the specific recommendations made by Mr. 
Teller to cure or mitigate this evil was one which 
would make it an unfair labor practice to : 

"(1) to deny a person membership in its or- 
ganization, or to discriminate against any of its 
members, whether directly or indirectly, by reason 



72 

of his race, color or creed, national origin or 
political beliefs; 

(2) to deny to any of its members any rights 
secured to him by its constitution and by-laws ; 

(3) to deny to any member the right to free 
discussion within the union, or to pimish any 
member for exercising such right; 

(4) to deny to any of its members the right 
to a fair and full hearing on all charges made 
against him, l^efore persons other than those 
bringing the charges. In the case of appeal by 
any member to a higlier body within the organiza- 
tion, such appeal shall Ije heard by a body sep- 
arate from and independent of any person or 
body connected with the charges or any hearings 
on the charges." 

A Labor Policy for America, p. 152. 

These proposed unfair labor practices of imions 
were intended to effectuate legislation which had been 
advocated by the American Civil Liberties Union as 
early as 1943. The specific proposal of the Civil Liber- 
ties Union and the reasons underlying it are fully 
set forth in its publication '^ Democracy in Trade 
Union", and is referred to therein as '^A 'Bill of 
Rights' for union members". {Democracy in Trade 
Unions, p. 68.) 

Mr. Teller would also have made it an unfair labor 
practice on the part of the employer to discharge an 
employee pursuant to a "closed shop" provision un- 
less there were first fulfilled certain conditions pre- 
cedent. Mr. Teller's proposal was as follows; 



i 



73 



''It should be an unfair labor practice for an 
employer, pursuant to a iniion security provision 
contained in a collective agreement, to discharge 
or otherwise to subject an employee to any dis- 
ability in regard to the terms and conditions of 
his employment, unless the contracting union has 
certified to the employer in writing that the 
employee in question has finally exhausted his 
remedies within the union. The proposed Labor 
Court should have jurisdiction over cases of al- 
leged improper expulsion from labor unions." 

A Labor Policy for America, p. 168. 

It is interesting to note that in making this proposal 
the author states: ''The suggested unfair labor prac- 
tice is designed to perfect a defect in existing law." 
(Italics ours.) 

Only another example of the recognition of this 
defect will suffice to make it clear that very few per- 
sons outside of the Board failed to recognize it. 

''Labor unions are, of course, human institu- 
tions and are thus subject to the vices as well as 
the virtues of their leaders. In that respect, the 
closed shop presents the same dangers that are 
inherent in the concentration of power in the 
hands of officers of any institution — political, 
economic, or social. But it is ob\ious that the 
danger is much more minatory when the power 
is held by union ofKcials who, through the usurpa- 
tion of power of voluntary associations, may 
almost at will refuse membership to some workers 
or rescind it from others. In either case, under 
such abuses of the closed shop principle, the result 
is to deprive a man of the opportunity to earn 
his living. Therefore, in order to safec/uard that 



74 



opportunity, while at the same time permitting 
the proper ftmctioning of the closed shop, two 
important provisions are needed: (1) every union 
must be open generally to qualified workers on 
reasonable and non-discriminatory terms; and 
(2) workers who have been refused membership 
and those who have been suspended or expelled 
from a union should be permitted to appeal their 
cases to an impartial chairman or a labor board. 

With these safeguards established to protect 
labor against exceptional abuses of power by some 
irresponsible imion leaders, the natural 'Grod- 
given' right to work would be adequately pro- 
tected." (Italics ours.) 
''The Closed Shop'' (1944), Toner, Amer. 
Council on Public Affairs, Washington, D. 
C, pp. 191-192. 

The Rutland case. Legislation by the Board. 

After the Ansley decision, w^e find that while such 
staunch friends of labor as the American Civil Liber- 
ties Union were specifically advocating legislation to 
"democratize the employees' organizations", organ- 
ized labor itself and the Board, its most eminent 
and powerful protagonist, stul)bornly refused to ac- 
knowledge the obvious necessity for changes in the 
Act. 

Some years after the Ansley case, the Board aban- 
doned the logical position there declared, and an- 
nounced in its decision in Rutland Court Otvners, Inc. 
(1942), 44 N.L.R.B. 587, the pohcy and argument 
which it has ajiplied to the instant case, and in the 
case of Local 2880; etc. v. N. L. R. B., supra. This 



75 



policy and this argument were an obvious makeshift 
and an expedient adopted to avoid admitting the ne- 
cessity of congressional intervention to remedy the 
chaotic condition created hy disputes between the 
two great la]:)or organizations. 

The policy announced in the Rutland case was criti- 
cized and vigorously denounced as a usurpation of 
congressional power in, and outside, the Board. Board 
member Leiserson, dissenting in that case, said: 

** There is no contention in this i)roceeding that 
the closed-shojj contract of 1939 is invalid. The 
discharges were made pursuant to the terms of 
that contract and are therefore within the terms 
of the pro\T.so to Section 8(3) of the Act. To 
reach a contrary result the majority has in effect 
assumed authority to suspend enforcement of the 
pro^dsions of a valid collective bargaining agree- 
ment although this Board has previously held 
that it was not permitted to do so. // valid closed- 
shop contracts, which are expressly permitted hy 
the Act, have undesirahle effects, it is for the 
Congress, and not for the Board, to make the 
modifications. I would dismiss the complaint." 
Rutland Court Owners, supra, at p. 603. 

Outside the Board we find the following criticism of 
the Rutland Court Owners case : 

'^The Rutla7id Court Otvners case would seem 
to he an act of legislation hy the Board. * * * 

The Board was, however, faced with the fact 
that the National Labor Relations Act expresses 
two policies which are at times inconsistent: (1) 
the policy that employees should have freedom in 
selecting, by majority vote, representatives for 



76 



collective bargaining; (2) the policy that closed 
shop agreement, if properly made, should be en- 
forced by discharge of employees for failure to 
affiliate with the contracting union. The Rutland 
Court Owners case shows that the Board prefers 
to be guided by the first and not the second policy 
where the agreement is about to expire. * * * 

The problem is one tvhich, as Board Member 
Leiserson stated in the Btttland Court Otvners 
case, requires Congressional action, * * *" (Italics 
ours.) 

^'Labor Disputes and Collective Bargainings^ 
Teller, Cum. Supp., April, 1947, pp. 105-106. 

The dilemma created by the Rutland case. 

The Board's disastrous polic)^ not only subjected 
the employer, who in good faith complied wdth the 
closed shop contract, to penalties in the form of back 
pay for discharged employees, hwi also to legal sanc- 
tions in the courts for failure to perform a contract, 
the performance of which the Board had forbidden. 
This employer's dilemma has been stated by Teller as 
follows : 

"This result, on the other hand, might be em- 
barrassing to the parties to the agreement, since 
enforcement of the agreement might l^e secured 
in a law court, thereby subjecting the parties to 
inconsistent orders." {Labor Disputes and Collec- 
tive Bargainiyig, Cum. Supp., April, 1947, p. 106.) 

An order such as was entered in this case presented 
to a California employer a very real prol^lem. 

We know from what appears in Park cC- T. I. Corp. 
V. Int. etc. of Teamsters, supra, that the public policy 



77 

of the state of California permits the coercion of 
employees by other employees or labor organizations. 
In addition in California such ''coercive" contracts 
are valid and enforceable. Section 1126 of the Cali- 
fornia Lal)or Code expressly provides for the enforce- 
ment of closed shop contracts. 

''Any collective bargaining agreement between 
an employer and a labor organization shall be 
enforceable at law or in equity, and a breach of 
such collective bargaining agreement by any party 
thereto shall be sul^ject to the same remedies, in- 
cluding injunctive relief, as are available on other 
contracts in the courts of this State." 

Such contracts have been held vahd and enforce- 
able in the following California cases: 

Levy V. Superior Court (1940), 15 Cal. (2d) 

692, 104 Pac. (2d) 770; 
Montalbo v. Hires Bottling Company (1943), 
59 Cal. App. (2d) 642, 139 Pac. (2d) 666. 

Since California permits the coercion of employees, 
it is very doubtful that its courts would hesitate to 
enforce a closed shop contract if the employer's sole 
defense should be an order of the Board based on the 
alleged malicious motivation of the contracting union. 
This for the reason that such coercion or malicious 
motivation, if directed at union members whose activi- 
ties are considered by the contracting union inimical 
to its best interests, has the complete sanction of the 
California courts. 

In James v. Marinship Corporation (1944), 25 Cal. 
(2d) 721, 155 Pac. (2d) 329, it was held that it is the 



78 

legal right of a union to expel from membership any 
person who has interests inimical to it or who may 
destroy it from within or who may refuse to abide 
by any reasonable regulation or lawful policy adopted 
by it. The Court said : 

''Defendants argue that a union should not be 
compelled to admit all persons to membership, 
because some of such persons may have interests 
inimical to the union and may destroy it from 
within. The right of the union to reject or expel 
persons tvho refuse to abide by any reasonable 
regulation or lawful policy adopted by the union 
{Brown v. Lehman (1940), 141 Pa. Super. 467 
(15 A. 2d 513), supra; see Rest. Torts, comment 
b to Sec. 810) affords it an effective remedy 
against such persons." (Italics ours.) 

James v. Marinship Corporation, supra, 25 Cal. 
(2d) at p. 736, 155 Pac. (2d) at p. 338. 

There is no question l)ut that the discharged employees 
in the instant case were seeking to destroy the CIO 
from within, and therefore, under California law, the 
CIO was fully justified in expelling them. Under such 
circumstances the CIO's conduct would be neither 
malicious nor unlawful, and Petitioner would have no 
defense to interpose to any action brought by the CIO 
to compel the enforcement of the contract. 

There is another principle of law in addition to 
those discussed above, which would require the Peti- 
tioner to comply with the provisions of the ''closed 
shop" contract, even though it knew of the alleged 
intended purpose of the CIO to use the contract to 
violate the Act. This principle is that it is no defense 



79 



to the performance of the contract that the obligor 
knows that the agreement or its performance might 
aid the obligee to violate the law. The principle has 
been stated as follows : 

''The law is clear and decisive on the question 
of the enforceability of a contract even though 
one of the parties thereto has knowledge of an 
intended purpose of the other party, by means of 
the contract, or the performance thereof, to vio- 
late some law or public policy of the state. The 
rule in that regard is thus stated in 53 A.L.R. 
1364 at page 1366: 

'The rule, according to the great weight of 
authority, is to the effect that a contract legal in 
itself is not rendered unenforceable by the mere 
fact that one of the parties thereto has knowledge 
of an intended purpose of the other party thereto, 
by means of the contract or subject - matter 
thereof, to violate some law or public policy of 
some state; or, as is stated in 6 R.C.L. p. 696, 
"where there is no moral turpitude in the making 
or in the performing of the contract, the mere 
fact that an agreement the consideration and 
performance of which are lawful incidentally 
assists one in evading a law or public policy, is no 
bar to its enforcement, and that, if the contract 
has been performed by the promisee, it is no de- 
. fense that the promisor knew that the agreement 
or its performance might aid the promisee to 
violate the law or to defy the public policy of the 
state, when the j^romisor neither combined nor 
conspired with the promisee to accomplish that 
result, nor shared in the benefits of such a viola- 
tion." ' " 
People V. Brophy, 49 Cal. App. (2d) 15, at 
30-31, 120 P. (2d) 946, at 954-955. 



80 



The application of the express provisions of the 
Wagner Act itself placed employers in many perplex- 
ing and insoluble situations, but this had to be ac- 
cepted because it was the express desire and intent of 
Congress. On the other hand it appears to us unjusti- 
fiable to inflict further penalties on an employer on 
the basis of inferences and assumptions which appear 
to be entirely contrary to the express and declared 
intent of Congress, particularly when the sanctions 
thus imposed are aimed at a state of mind and at 
activity heretofore considered entirely legitimate. We 
need not, however, rest our case on this argument. 

In enacting the "Labor Management Relations Act, 1947", Con- 
gress has again declared that the Wagner Act was not 
intended to prohibit the coercion of employees by unions. 

The Wagner Act generall}^, and Section 8 in par- 
ticular, have been radically amended by the Labor 
Management Relations Act, 1947. The changes wrought 
in the pertinent sections of the Wagner Act by these 
amendments cannot be validly described as "clarifica- 
tions". Such amendments give rise to a presumption 
of change, not clarification. 

"* * * the amendment of the language in the 
particular noted signifies an intention to change 
the pre-existing law. In ZJniteA States v. Bashaiu, 
50 Fed. 749, 754, it was said: 'The very fact that 
the prior act is amended demonstrates the intent 
to change the pre-existing law, and the presump- 
tion must be that it was intended to change the 
statute in all the particulars touching which we 
find a material change in the language of the 
act.' 



81 



'Where changes have been introduced by 
amendment, it is not to ])e assumed that they 
were without design; usually an intent to change 
the law is inferred.' (In re Segregation of School 
District No. 58, 34 Idaho, 222 (200 Pac. 138).) 
In Rieger v. Harrington, 102 Or. 603 (203 Pac. 
576, 580), it was said: 'By amending that statute, 
the legislature demonstrated an intent to change 
the pre-existing law, and the presumption must 
be that it was intended to change the meaning of 
the statute in all the particulars wherein there is 
a material change in the language of the amended 
act' " 

People V. Weitzel (1927), 201 Cal. 116 at pp. 
118-119, 255 Pac. 792 at 793. 

The Board's position is that under the Wagner Act 
it had power to regulate labor unions by declaring 
them ineligible to be parties to a "closed shop" con- 
tract when the unions committed the unfair labor 
practice of coercing their members in the exercise of 
the rights guaranteed by Section 7 of said Act. The 
Board maintained that the Act so provided, and it 
follows that it would be unreasonable and unnecessary 
to "change" the Act for the purpose of inserting a 
provision which already existed therein. Section 
8(b)(1) and (2) of the new Act provides in part as 
follows : 

" (b) It shall be an unfair lahor practice for a 
labor organization or its agents — — 

(1) to restrain or coerce (A) employees in the 
exercise of the rights guaranteed in section 157 of 
this title-, * * * 



82 



(2) to cause or attempt to cause an employer to 
discriminate against an employee in violation of 
subsection (a)(3) of this section or to discrimi- 
nate against an employee with respect to whom 
membership in such organization has been denied 
or terminated on some ground other than his fail- 
ure to tender the periodic dues and the initiation 
fees uniformly required as a condition of acquir- 
ing or retaining membership 5 * * * " 

29 U.S.C.A., Sec. 158(b) (1) (2). 

Here we have for the first time in express language 
a statutory prohi]:>ition against the coercion of em- 
ployees by other emj^loyees or lal)or organizations. 
Was it necessary to make a "change" to express what 
already was law? It seems to us that to answer this 
in the affirmative would be to charge Congress vnth 
indulging in fruitless ])yplay. 

The Conference Rei)ort of the House accompanying 
the adoption of the Labor Management Relations Act, 
1947, furnishes ample proof of the fact that change, 
not clarification, was the desired objective. We find 
that the Act was to be "two-sided", no longer "one- 
sided". 

"In amending section 1 of the National Labor 
Relations Act (the pohcy thereof) the House bill 
omitted from the present law all of the so-called 
findings of fact, some of which have been so 
severely criticized as being inaccurate and 
entirely one-sided. The Senate amendment re- 
wrote the findings and policies contained in sec- 
tion 1 of the National Labor Relations Act so 
that those findings will not hereafter constitute 



83 



an indictment of all employers. At the same time 
the Senate amendment inserted in the findings of 
fact a paragraph to the effect that experience has 
demonstrated that certain practices by some labor 
organizations have the effect of burdening com- 
merce through strikes and other forms of indus- 
trial unrest or through concerted acti^dties which 
impair the interest of the public in the free flow 
of commerce. The Senate amendment fui*ther 
declared the elimination of such practices to be 
a necessary condition to the assurance of the 
rights herein guaranteed. Thus under the Senate 
amendment the findings and policies of the 
amended National Labor Relations Act are to be 
Hw 0-sided/ The conference agreement adopts the 
provisions of the Senate amendment in this re- 
spect." (Italics ours.) 
H. R. Report No. 510, 80th Congress 1st Ses- 
sion. 

"We also find that Congress knew that under the old 
Act an employee was not free from being coerced into 
a union, and that the new Act changes the situation 
so that now he is free to remain unorganized. 

''The second change made by the House bill 
in section 7 of the act (which is carried into the 
conference agreement) also has an important 
bearing on the kinds of concerted activities which 
are protected by section 7. That provision, as 
heretofore stated, provides that employees are 
also to have the right to refrain from joining in 
concerted activities with their fellow employees 
if they choose to do so." 

H. R. Report No. 510, 80th Congress 1st Ses- 
sion, pp. 39-40, 



84 



The report shows that in defining in the new Act, 
the unfair labor practices of unions, Congress was 
'' adding" to the Act. We submit that there is no 
necessity for adding anything to a statute if it is 
already there. 

''Both the House bill and the Senate amend- 
ment amended section 8 of the National Labor 
Relations Act by adding thereto unfair labor 
practices on the part of labor organizations/' 
(Italics ours.) 
H. R. Report No. 510, 80th Congress 1st 
Session, p. 40. 

Finally, on this phase of the question, we submit 
that the Board's premise has no support in the past or 
present history of the Act, and that the Board's con- 
tention in this case and in the case of Local 2880, etc. 
V. N.L.R.B., supra, cannot be upheld by the rule an- 
nounced by the Supreme Court in Wallace Corpora- 
tion V. N.L.R.B. (1944), 323 U. S. 248, 89 L. Ed. 216. 
This uncertain pronouncement of an extremely di- 
vided Supreme Court should be applied only in cases 
disclosing a similar state of facts, to-wit, cases where 
the employer mllingly or otherwise collaborates with 
a union in a discriminatory scheme. Compliance with 
a valid "closed shop" contract is not the type of col- 
laboration denounced by the Wallace case. 

We submit in the light of the foregoing that the 
order entered herein by the Board was in excess of 
the powers vested in it by the Wagner Act, and that 
it therefore constitutes a deprivation of the property 
of the Petitioner and the CIO without due process 
of law. 



85 



2. EVEN IF IT BE ASSUMED THAT THE ACT DID PROHIBIT 
THE COERCION OF EMPLOYEES BY UNIONS, THE PETI- 
TIONER WAS NEVERTHELESS ENTITLED TO A DISMISSAL 
OF THE COMPLAINT BECAUSE THE RECORD FAILS TO 
DISCLOSE ANY EVIDENCE SHOWING THAT THE CIO DIS- 
CRIMINATED AGAINST EMPLOYEES BECAUSE OF THEIR 
ADVOCACY OF ANOTHER ORGANIZATION AS THE BAR- 
GAINING REPRESENTATIVE. 

In this portion of our argument it assiuned that 
the Board has the power to prevent unfair labor 
practices by unions and to prohibit the performance 
of a ''closed shop" contract in order to achieve this 
objective. It is also assumed that it is an imfair labor 
practice for a union to secure, under the terms of a 
''closed shop" contract, the discharge of an employee 
because he engaged in activities designed to secure a 
change in bargaining representatives. It is further 
assumed that it is an unfair labor practice for an 
employer to discharge an employee, at the request of 
a union pursuant to the terms of a "closed shop" 
contract, if he knows that the discharge was requested 
because of acti^dty designed to secure a change in 
bargaining representatives. 

The discharge of the employees was requested because of a viola- 
tion of the CIO policy against strikes and not because of 
activity for a new bargaining agent. 

It is our position that the record shows that the 
discharge of the employees was not requested because 
of activity designed to secure a change in bargaining 
representatives, but because of a clear \iolation of the 
CIO's policy against wartime strikes. 



86 

The record establishes that all of the discharged 
employees participated in one way or another in a 
strike^ ^ and the Board admits this fact. 

''For the next few days most of the respond- 
ent's employees, including all the complainants, 
stayed away from work because of the 'con- 
tinuous meetings', a stoppage which we find 
constituted a strike/' (Italics ours.) (Board's 
Decision, R. 72.) 

The record also establishes that the CIO had 
pledged itself not to engage in any strike for the 
duration of the war^°, and that all the discharged em- 
ployees knew that participation in this strike was 
contrary to this policy. 

In addition, the record shows that on the day of 
the strike and before it began, the CIO distributed 
among the employees at Petitioner's plant a pamphlet 
warning that those who participated in this strike 
would lose standing in the union as well as their 
jobs.'^ 

The record likewise establishes that the CIO sus- 
pended or expelled all of the discharged employees 
because they fomented or participated in a wartime 
strike,^" and it is also a fact that some of them pleaded 
guilty to the charge of participating in or fomenting 
such a strike.^® 



i4R. 70; 71-72; 201-203; 258; 274; 296; 365-367; 404-405; 420- 
421 ; 506-507. 
15R. 420-421. 
K'R. 257; 789-790. 
I'R. 741-742; 742-743; 856; 867. 
18R. 506-507. 



87 



The Board's decision makes no finding contrary 
or in conflict with any of the facts above recited, but 
the Board does conclude that the employees were 
expelled because of activity designed to displace the 
CIO as bargaining rejjresentative. In so doing the 
Board confuses the motive with the (l)e) cause. 

An act unlawful in itself is not converted by a malicious or bad 
motive into an unlawful act. 

That the CIO had the right to discipline its mem- 
bers for participating in a strike called in violation 
of union policy, is, as the Trial Etxaminer states,^" 
hardly open to question, and the Board does not in 
its decision deny that the CIO had the right to 
discipline its members for such a reason. 

Iii view of the admitted facts, it must be conceded 
that the Board by its decision and order has 
erroneously, on the basis of the CIO's malicious 
motivation, denied the CIO the legal right to dis- 
cipline its members and control its affairs. 

We submit that there is absolutely no legal basis 
for this action of the Board. A state of mind is not 
a wrong for which the law gives redress, and it is the 
general rule that a rightful act is not rendered action- 
able as a wrong by virtue of the bad intent with which 
it is done. 

''A malicious motive or a mere intention to do 
wrong, not connected with the infringement of a 
legal right, cannot be made the subject of a civil 
action, for malice, of itself, as a state of mind, 

loR. 63. 



is not a wrong for which the law gives redress. 
It is only when words or acts are inspired or 
prompted by malice that comes within judicial 
cognizance. The intention to do a wrong must 
be coupled with the doing or accomplishment of 
the act intended. Accordingly, it may be laid 
down as a general rule that a rightful or legal 
act, or the exercise of a legal right, is not ren- 
dered actionable as a wrong to another by virtue 
of a bad intent with which it was done or the 
existence of a malicious motive that prompted it. 
In other words, whatever a man has a legal 
right to do he may do with impunity and with- 
out raising a cause of action against himself be- 
cause of bad motives, if he exercises his legal 
right in a legal way, even though damage results 
to another." 
1 Am. Jur., Actions, Sec. 25, pp. 420-421. 

The Board itself has recognized the legal principle 
above set forth. In National Linen Service Corp, 
(1943), 48 N.L.R.B. 171, the Board recognized the 
difference between motive and cause in a case where 
it was conceded that the employer had intended to dis- 
miss certain employees because of union activity. In so 
recognizing this principle and applying it, the Board 
approved the following findings of one of its Trial 
Examiners in the above cited case: 

''On that day Thorne was paid off and has not 
again been employed by United at any of its 
branches or by any of the other branches of Na- 
tional. From the foregoing it is found that al- 
though Thome's yiame was on the list of 
employees to he dispensed with because of their 



89 



union activities, when and as a suitable pretext 
could he found, the circumstances surrounding 
Thome's discharge did not constitute a pretext 
but a normal and legitimate reason for refusing 
to continue him in the employ of United. In dis- 
charging Thorne, United did not engage in any 
unfair labor practice. 

***** 4t * 

"Lyons testified that his anti-Semitism first 
came to the surface in about September 1940 and 
that it continued to increase from then imtil the 
United States entered the war. There is no evi- 
dence as to when this first came to Gordon's at- 
tention. With few exceptions, the management 
of National appears to be essentially Jewish. 
Bearing in mind that notorious anti-Semitism 
openly expressed among his fellow employees by 
one in the position occupied by Lyons may well 
be highly obnoxious to a Jewish employer, it is 
found that, although Lyons was on the list of 
employees to he dispensed with at the first pre- 
text hecause of their union activities, neverthe- 
less, his conduct, independent of his union activi- 
ties, was obnoxious to the management of United 
and was of a character which justified his dis- 
charge regardless of his union affiliation, and that 
his imion affiliations were not the motivating 
cause of his discharge. Li discharging Lyons, 
United did not engage in any unfair labor prac- 
tices." (Italics ours.) 

National Linen Service Corp., supra, at pp. 
204-205. 

A labor union, it is submitted, should have the right, 
as other persons or associations, to preserve and pro- 



90 

tect itself from those who would destroy it from 
within. The Board's failure to apply legal principles 
without discrimination herein has resulted not only 
in unwarranted interference with the internal affairs 
of the CIO, but also in reviving a discredited defense 
to the enforcement of legal rights. The principle of 
this discredited defense as applied in this case, per- 
mits delinquent members of a union to immimize 
themselves from any discipline or punishment by 
merely manifesting their hostility to the bargaining 
agent before or after the coromission of the offense. 
Applied generally, this discredited defense would per- 
mit defaulters to defeat all claims against them by 
merely contending that the ol^ligee was actuated by 
malicious motives. 

"The proposition is clearly and forcibly stated 
in Jenkins v. Fowler, 24 Pa. St. 308, as follows : 
'Malicious motives make a bad case worse, but 
they cannot make that wrong which, in its own 
essence, is lawful. When a creditor who has a 
just debt brings a suit or issues execution, though 
he does it out of pure enmity to the debtor, he is 
safe. In slander, if the defendant proves the 
words spoken to be true, his intention to injure 
the plaintiff by proclaiming his infamy will not 
defeat justification. One who prosecutes another 
for a crime need not show he was actuated by 
correct feelings, if he can prove that there was 
good reason to believe the charge was well 
founded. In short, any transaction which would 
be lawful if the parties were friends cannot be 
made the foundation of an action merely because 
they happen to be enemies. As long as a man 



91 



keeps himself within the law by doing no act 
which violates it, we must leave his motives to 
Him who searches hearts.' " 

Chambers v. Baldwin, 91 Ky. 121, 128, 15 S. W. 

57, 59, 11 L.R.A. 545, 549, 34 Am. St. Rep. 

165, 169. 

It is, therefore, siilmiitted that although it might 
be argued that there was evidence of *'bad motive," 
there is certainly no evidence that the discharges were 
requested and obtained because of acti\dty designed 
to effect a change in bargaining representatives, and 
for this reason Petitioner herein was entitled to the 
dismissal of the complaint. 



3. EVEN IF IT BE ASSUMED THAT THE BOARD HAS POWER 
TO PREVENT THE COERCION OF EMPLOYEES BY LABOR 
ORGANIZATIONS AND THAT THE CIO SUSPENDED ITS 
MEMBERS BECAUSE OF THEIR ADVOCACY OF ANOTHER 
UNION, THE PETITIONER WAS ENTITLED TO A DISMISSAL 
OF THE COMPLAINT BECAUSE THERE IS NO EVIDENCE 
IN THE RECORD THAT THE PETITIONER HAD KNOWL- 
EDGE OF THE CIO'S ALLEGED MALICIOUS MOTIVATION. 

The findings of the Board should be carefully 
scrutinized because they are in conflict with those of 
its Trial Examiner. 

The Petitioner, under the policy enunciated by the 
Board in the Rutland Court Owners case, supra, is 
here charged with violating Section 8(1) (3) of the 
Wagner Act on a general finding by the Board that it 
had "knowledge" that the CIO suspended the em- 
ployees because of activity designed to effect a change 



92 

in representatives. (R. 79.) On the other hand the 
Trial Examiner who presided at the hearing, found 
that Petitioner did not have such knowledge and 
recommended the dismissal of the complaint in its 
entirety. (R. 65; 67.) Under such circumstances we 
feel justified in calling the Court's attention to the 
rule that "while the report of the examiner is not 
binding on the Board, yet where it reaches a con- 
clusion opposed to that of the examiner, * * * 
the i"eport of the latter has a bearing on the question 
of substantial support and materially detracts there- 
from.'' 

A. E. Staley Mfg, Co. v. N.L.R.B. (1941; CCA 
7th), 117 Fed. (2d) 868, at 878; 

N.L.R.B. V. Superior Tanning Co. (1941; CCA 
7th), 117 Fed. (2d) 881, at 890; 

Wilson <h Co. V. N.L.R.B. (1941; CCA 8th), 
123 Fed. (2d) 411, at 418; 

Wyman-Gordon Co. v. N.L.R.B. (1946; CCA 
7th), 153 Fed. (2d) 480, at 482. 

In presenting the question of the sufficiency of the 
evidence to sustain the findings of the Board, we do 
so knowing that it has the exclusive province of ap- 
praising the evidence and of drawing inferences from 
established facts, but we also know that in so doing 
it must observe certain fundamental standards. It is 
required to observe the traditional rule against the 
presumption of liability or bad faith; it must 
base its findings on substantial evidence — not mere 
scintilla, and the inferences it draws must be reason- 



93 



able inferences generated by facts — ^not surmise or 
speculation. 

Boeing Airplane Co. v. N.L.R.B. (1944; CCA 
10th) 140 Fed. (2d) 423, at 433. 

We believe that what follows will show that the 
Board erred in finding contrary to the Trial Ex- 
aminer, and that in its own findings it has not ob- 
served the fundamental standards above summarized. 

The Board's findings that Petitioner had "knowledge" of its 
employees' anti-CIO activity when it discharged the first 
two groups of employees, are based on invalid and pro- 
hibited inferences and should be disregarded. 

On July 30, 1945, the Petitioner discharged five em- 
ployees who had been CIO stewards, and on July 31, 
1945, it discharged four employees who acted as com- 
mitteemen for the other employees opposing the CIO. 
The Board found that the Petitioner had ''knowl- 
edge" of its emj)loyees' "anti-CIO" acti^dty when 
it discharged these persons. These findings are based 
on invalid and prohibited inferences. 

The term "anti-CIO", so often to be encountered 
herein, is indiscriminately used by the Board in its 
decision when qualifying or describing employee ac- 
tivity or purpose. This is an ambiguous tenxi and it 
is seldom possible to determine from the context 
whether the Board has used it to describe, in relation 
to the CIO's right to discipline its members, permis- 
sible and innocent conduct, allegedly protected by 
Section 7 of the Act, or prohibited and punishable 
conduct not within the protection of the Act. There- 



94 

fore, to make clear the defects in the Board's find- 
ings, it is necessary to define or describe permissible 
and prohibited ''anti-CIO" activity or purpose. 
Under the Board's announced policy in the Rutland 
case, supra, activity designed to secure a change in 
bargaining representatives is permissible ''anti-CIO" 
activity, and is protected by the Act. Resignation or 
withdrawal from the CIO, the Board admits, would 
ordinarily entitle the Petitioner to discharge an em- 
ployee in view of the ''closed shop" contract, and 
is, therefore, prohibited anti-CIO activity not pro- 
tected by the Act. (Board's Decision, R. 78, Foot- 
note 8.) A strike violative of the CIO's rules and 
not authorized by it, is prohibited anti-CIO activity 
and is not protected by the Act. (N.L.R.B. v. Draper 
Corporation (1944; CCA 4th), 145 Fed. (2d) 199, at 
pp. 202-203.) Failure to perform the duties of office 
and the sabotage of policy adopted by majority vote 
is, on general principles, prohibited anti-CIO activity 
not protected by the Act. 

With the foregoing definitions in mind, we will first 
discuss the finding invohang the discharges made on 
July 30, 1945. 

The record shows that a meeting was called for 
July 30, 1945, and that the notices announcing it were 
posted in Petitioner's plant on July 28, 1945. (R. 
192; 213.) 

The meeting was called for a dual purpose. One 
was to foment activity designed to secure the selection 
of a new bargaining representative, and was therefore 



95 



permissible anti-CIO activity. The other was to in- 
duce the employees to withdraw from the CIO and 
was therefore prohibited anti-CIO activity. (R. 189- 
190; 260-261; 286-287; 408-409.) 

In the early afternoon of the day of the meeting 
the five stewards were suspended and dismissed. 
(R. 667; 523-525; 538-539.) Nothing was said or done 
at that time which could have informed the Petitioner 
as to the reason for the suspension by the CIO of 
these five men. The Board, however, in order to bring 
home to Petitioner guilty knowledge of the CIO's 
motivation, and of the stewards' permissible anti-CIO 
activity, draws certain invalid inferences from the 
fact that a "lay-off" of two hours for the meeting 
was requested and granted. (R. 268-269.) The record 
shows that the persons who requested the lay-off said 
nothing which would have informed the Petitioner as 
to either of the purposes of the meeting. Accordingly 
the Board was forced to draw its inferences as 
follows : 

'^The respondent must have learned of the (per- 
missible anti-CIO) purpose of the meeting, or it 
would not have agreed to shut down the plant for 
about two hours so that the employees could at- 
tend." (R. 69-70.) (Italics and parenthetic in- 
sertion ours.) 

On the basis of this finding, the Board concludes that, 
"before the discharge of the stewards the re- 
spondent must have learned of their (permissible) 
anti-CIO activity, for it is unreasonable to sup- 
pose that it would have agreed to the request 



96 

made by one of them to shut down operations to 
enable working employees to attend a meeting 
the stewards planned to hold witJiout ascertain- 
ing the reason of the meeting." (Italics and 
parenthetic insertion ours.) (R. 77.) 

The Court will note how the Board has clandes- 
tinely introduced in both its premise and its conclu- 
sion the silent assiunption that Petitioner must have 
learned the ''true" or permissible purpose of the 
meeting and must have ascertained the "true" or 
permissible reason for the meeting. We submit that 
this is a perfect example of fallacious reasoning. 

The Board first postulates on its ipse dixit that 
employers never grant time for meetings unless they 
ascertain the purpose of the meeting. Satisfied with 
this premise the Board infers therefrom that Peti- 
tioner must have ascertained or been given a reason 
for the meeting. Having gone this far the Board then 
resorts to the much condemned practice of drawing 
one inference upon another, and deduces from the 
first the further inference that Petitioner must have 
learned the "true" or permissible anti-CIO purpose 
of the meeting when it ascertained or was given a 
reason therefor. It is the rule that findings reached 
in this fashion are not supported by substantial 
evidence. 

N.L.B.B. V. Pick Mfg. Co. (1944; CCA. 7th; 
135 Fed. (2d) 329, at 333.) 

The foregoing demonstrates that the Board has 
failed to prove that employers in general, and Peti- 



97 



tioner in particular, invariably ascertain the "true" 
purpose of meetings for which they grant time. But 
there is an even stronger reason against the propriety 
of basing this finding on an inference. Two of the dis- 
charged employees, one the steward who requested 
the lay-off and another who accompanied him on this 
mission, were both Board witnesses at the hearing. 
Other witnesses at the hearing who also had knowl- 
edge of this matter were Mr. Altman, Petitioner's 
plant superintendent, the person who granted the 
request for time off, and Mr. Carter and Mr. Stans- 
bury, his assistants, who were present in his office 
at the time. (R. 268-269.) There were, therefore, at 
least five persons from whom the Board's counsel 
could have elicited direct testimony, had he so desired, 
as to whether Petitioner was told or ascertained the 
permissible anti-CIO purpose of the meeting. Under 
such circumstances the Board cannot rely on infer- 
ences or on its "expertness" to sustain this finding. 
When direct evidence as to a fact is available, the 
party having the burden of proof may not rely on 
inferences. 

^^liifei'ence is capable of bridging many gaps. 

But not, in these circumstances, one so wide and 

deep as this. * * * 

'*No favorable inference can be drawn from the 
omission. It was not one of oversight or inability 
to secure proof. That is shown by the thorough- 
ness witli which the record was prepared for all 
other periods, before and after this one, and by 
the fact petitioner's mfe, though she married him 
during the period and was available, did not tes- 



98 



tify. The only reasonable conclusion is that peti- 
tioner, or those who acted for him, deliberately 
chose, for reasons no doubt considered sufficient 
(and which we do not criticize, since such mat- 
ters, including tactical ones, are for the judgment 
of counsel) to present no evidence or perhaps to 
withhold evidence readily available concerning 
this long interval, and to trust to the genius of 
expert medical inference and judicial laxity to 
bridge this canyon. 

^'In the circumstances exhibited, the former is 
not equal to the feat, and the latter will not per- 
mit it. No case has been cited and none has been 
found in which inference, however expert, has 
been permitted to make so broad a leap and take 
the place of evidence which, according to all 
reason, must have been at hand. To allow this 
would permit the substitution of inference, 
tenuous at best, not merely for evidence absent 
because impossible or difficult to secure, but for 
evidence disclosed to be available and not pro- 
duced. This would substitute speculation for 
proof.' ^ 

Galloway v. U.S. (1943), 319 U.S. 372, at 
386-387, 87 L. Ed. 1458, at 1468-1469. 

In addition to the logical obstacles and the rules 
of evidence which render the Board's finding invalid, 
there are other matters which militate against it. 

First, it is the uncontradicted fact that the meet- 
ing had a dual purpose, one which was proper and 
the other prohibited. Assuming, therefore, that Peti- 
tioner did ascertain the dual purpose or reason for 



99 



the meeting, the question is what power did it have 
to compel a disclosure with respect to the state of 
mind and the internal affairs of the CIO which would 
enable it to ascertain whether the discharges were re- 
quested because of permissible or because of pro- 
hibited activity? It must be conceded that Petitioner 
did not have the power to compel disclosure of this 
information. In addition, the Petitioner did not pos- 
sess the ''expertness" of the Board and was not priv- 
ileged, as was the iBoard, to draw "either of two in- 
consistent inferences from the evidence" and to base 
a finding on the one so selected."" Under such cir- 
cumstances we submit that Petitioner was entitled to 
presume that in this transaction the CIO was acting 
in fairness and in honesty and that it was suspending 
the men because of prohibited activity. If Petitioner 
were to have been compelled to take on the attribute 
of a judge, a function which the Board has in fact 
cast upon it (R. 79), it would have been forced to 
find that the evidence before it did not establish the 
illegal motivation of the CIO because it gave sup- 
port both to the contention that the CIO acted in good 
faith and to the contention that it did not.-^ 

Second, the representatives of the Petitioner when 
requested to give time for the holding of the meeting, 
could not have made inquiry with respect to any union 
activities which were to be discussed thereat except at 



^m.L.R.B. V. Nevada Consol. Coppei- Corp. (1942), 316 U.S. 
105, at 106-107, 86 L. Ed. 1302, at 1307. 

^^Pennsylvania R. Co. v. Clmmherlain (1932), 288 U.S. 333, at 
339-340; 77 L. Ed. 819, at 823; Gunning v. Cooley, 281 U.S. 90, 
at 94-95; 74 L. Ed. 720, at 724-725. 



100 

the risk of being charged mth unfair labor practices 
violative of the Wagner Act. The Board has consist- 
ently held that the questioning of workers by exec- 
utives or supervisory employees concerning union 
activities constitutes interference or coercion violative 
of Section 8(1). 

Biles Coleman Lbr. Co. (1937), 4 N.L.R.B. 679; 

Cover Fork Coal Co. (1937), 4 N.L.R.B. 202; 

Crow Coal Co. (1938), 9 N.L.R.B. 1149. 

Since it must be presumed that Petitioner's repre- 
sentatives acted in good faith and did not ^dolate the 
Act, the conclusion must be that they did not question 
the employees as to the nature of the union matters 
to be taken up or discussed at the meeting. (Commen- 
taries on the Law of Evidence, Jones, 1913, Vol. 1, 
Sec. )13, pp. 98-100.) This being so. Petitioner's rep- 
resentatives could have gone as far as asking the 
steward and his companion the purpose of the meet- 
ing, and if the answer had been that it was for union 
activity, this would have limited the extent of their 
questioning, as under the rule above recited any 
further inquiry would have resulted in an unfair 
labor practice. 

Third, the finding of the Board, even though the 
other objections against it were not sufficient, is en- 
tirely inconsistent mth the facts. It must be remem- 
bered that the Petitioner herein stands charged with 
and has been found guilty of discharging the em- 
ployees because of their acti\^ty against the CIO and 
in favor of the AFL. If as charged and found it was 
the intent of Petitioner to assist the CIO and to dis- 



101 



courage membership in the AFL, it is hardly reason- 
able to suppose that, knowing that the meeting was 
for the purpose of fomenting opposition to the CIO, 
Petitioner would have consented thereto. We submit 
that it is illogical to maintain that the Petitioner was 
both for and against the CIO. 

In view of the foregoing, it is submitted that the 
Board's finding that the Petitioner knew of the per- 
missible or other anti-CIO purpose of the meeting and 
the anti-CIO activity of the stewards when their dis- 
charge was requested, cannot stand. This being so, it 
follows that the further finding that the Petitioner 
had guilty knowledge of the CIO's alleged illegal mo- 
tivation when it acceded to the discharge of these five 
persons, also cannot stand. Therefore, it must be con- 
cluded that in this instance the Board erred when it 
found that the Petitioner illegally assisted the CIO. 

The finding on the discharge of the four committee- 
men suffers from the same infirmities as does the one 
made with respect to the stewards. 

After the discharge of the stewards the meeting 
was held as scheduled, and those attending the meet- 
ing appointed four of their number to act as a com- 
mittee to secure a reinstatement of the stewards and 
adopted a resolution to go on strike in event the stew- 
ards were not reinstated. (R. 196; 848-850.) At this 
meeting authority was given to send telegrams to the 
CIO and to the Petitioner giving notice of withdrawal 
or resignation of those present from the CIO. (R. 
469-470; 786.) The foregoing establishes two acts con- 
stituting prohibited conduct not protected by the Act. 



102 



On the morning of July 31, 1945, the committee of 
four, armed with the authority conferred upon them 
by other employees, called at the plant and demanded 
that the five stewards be put back to work immedi- 
ately, stating that otherwise "they wouldn't be re- 
sponsible for the consequences." (R. 525-526.) This 
request for reinstatement was denied. The Board's 
version as to what occurred thereafter and its findings 
thereon are as follows: 

"On the morning of July 31, 1945, the nego- 
tiating conmiittee went to the respondent's office 
and interviewed Superintendent Altman and Vice 
President Railey in an attempt to get the dis- 
charged stewards reinstated, at the same time ad- 
vising the respondent of the anti-CIO telegram 
(prohibited conduct), which arrived during the 
interview. After the anti-CIO purpose of the in- 
terview had become plain, Heide, a CIO vice 
president, who was present, stated before Altman 
and Railey, admittedly management representa- 
tives, that the suspension notices of three of the 
four members of the negotiating committee were 
in the mail, asked the name of the fourth mem- 
ber, and upon learning that it was Olsen stated 
that he too would receive a suspension notice. 
Thus the respondent was in effect again informed 
that the CIO's motive was to remove the oppo- 
sition. (R. 71.) (Italics and parenthetic insertion 

ours.) 
******* 

Before the discharge of the committeemen at the 
termination of the strike on August 3, 1945, how- 
ever, the respondent learned of the CIO's plan 
to use its closed-shop contract to remove its oppo- 
nents, for when CIO Vice President Heide dis- 



103 



covered the anti-CIO activity of the committee- 
men, he baldly told two management representa- 
tives, Vice President Railey and Superintendent 
Altman, that the committeemen were thereupon 
being suspended." (B. 77.) 

The Court will note in connection with the fore- 
going finding that the Board has again with the use 
of its ambiguous term ''anti-CIO" activity, intro- 
duced therein the tacit assumption that the interview 
disclosed that the stewards and the committeemen 
were engaged solely and exclusively in activity de- 
signed to effect a change of representatives, and that 
is not the fact. 

The ''anti-CIO" telegram was evidence of with- 
drawal from the CIO, and according to the Board's 
own doctrine prohibited conduct not protected by the 
Act. The employees' charge that the CIO had failed 
to obtain increases in wages is indicative of dissatis- 
faction with the CIO, but it is not by any stretch of 
the imagination a statement of activity on behalf of 
another organization. The CIO's statement respecting 
the wartime freeze in wages and their right to disci- 
pline their members and to "keep them working" 
may be a defense or an explanation of its position, 
but it is certainly not indicative of a purpose to use 
the "closed shop" contract to discourage activity on 
behalf of another labor organization. (R. 527-528; 
545.) 

The right of the CIO to discipline its members and 
"to try to keep them workng" must be evaluated in 
the light of its pledge not to engage in strikes, and of 



104 

the undisputed fact tliat the employees involved were 
committed to a strike in the event the stewards were 
not reinstated. It is submitted, therefore, that the 
Board's assumption is not only invalid, but is also, 
in effect, a misstatement of the record, and that the 
conclusion must be that Petitioner did not at this time 
or before receive any information regarding the 
CIO's alleged illegal motivation. 

Also illustrative of the Board's attempt to bolster 
its decision by the use of false assumptions is its 
laconic mis-description of the pamphlet distributed 
the same day by the CIO. Although it was a warning 
against participating in an unauthorized strike (R. 
789-790), the Board by omission of facts has trans- 
lated it into a warning to those who would assist the 
^'CIO traitors." (R. 71.) Findings reached in this 
manner will not be accepted. 

a* * * ^]jg courts have not construed this lan- 
guage as compelling the acceptance of findings 
arrived at by accepting part of the e\^dence and 
totally disregarding other convincing evidence." 
N.L.R.B. V. Union Pacific Stages, Inc. (1938) 
(CCA. 9th), 99 Fed. (2d) 153, at 177. 

The finding that on Augfust 15, 1945, Petitioner obtained knowl- 
edge that the CIO was threatening employees "with dis- 
charge ' ' for AFL activity is not supported by the record. 

The following finding appears in the Board's deci- 
sion; 

'*0n August 15, 1945, according to the uncon- 
tradicted and credited testimony of employee 
Zulaica, he reported to Production Manager 
Stanberry, admittedly a management representa- 



105 



tive, that C.I.O. representatives were threatening 
him in the plant with discharge for wearing an 
A. F. of L. button. Stanberry admitted at the 
hearing that it was reported to him that C.I.O. 
adherents were 'threatening the men' with dis- 
charge under the closed-shop contract for wearing 
A. F. of L. buttons." (R. 73.) 

We maintain that the foregoing findings of the 
Board have no substantial support in the record and 
depend entirely for their validity on prohibited in- 
ferences. 

We have set forth all the testimony bearing thereon, 
in order not to encumber this portion of the brief, in 
the appendix at pages i-v. 

In the light of the record we submit that nothing 
having the dignity of an inference could be drawn 
therefrom to show that on August 15, 1945, the man- 
agement of Petitioner received knowledge of a CIO 
threat to discharge the men under the terms of the 
''closed shop" contract for AFL activity. If on the 
other hand it should be argued that an inference 
could be drawn to this effect, we point out that both 
Mr. Zulaica and Mr. Stanberry were witnesses at the 
hearing and that by proper questioning either one 
or the other, if it was the fact, could have testified 
directly that such a threat had been made and that it 
was in fact communicated to a representative of peti- 
tioner's management. When direct evidence as to a 
fact is available, the party having the burden of proof 
may not rely on inference to establish it. 

Galloway v. U. S., 319 U. S. 373, 87 L. Ed. 1458, 
supra. 



106 

The Board's finding that on Augrust 17, 1945, Petitioner was 
clearly apprised of the nature of the CIO's motivation by 
the charges of discrimination filed with the Board, is con- 
trary to the record. 

The following finding appears in the Board's de- 
cision : 

"On Angust 13, 1945, the A. F. of L. verified 
and thereafter duh^ filed the original unfair labor 
practice charge herein, alleging the discrimina- 
tory discharge of the five stewards and the four 

committeemen. 

4t ***** * 

Moreover, the respondent, when it refused the 
reinstatement application of these two groups of 
discharged employees on August 17, 1945, was 
clearly apprised of the nature of the dismissals 
by the formal charges of discrimination which the 
A. F. of L. had filed with the Board." (R. 72-73, 
77-78.) 

This finding is entirely contrary to the record. The 
pertinent portion of the charge filed by the AFIj read 
as follows : 

"Pursuant to Section 10(b) of the National 
Labor Relations Act, the undersigned hereby 
charges that Colgate-Pahnolive-Peet * * * is en- 
gaging in unfair labor practices within the mean- 
ing of Section 8 subsections (1) and (3) of said 
Act, in that on or about the dates hereinafter 
specified, it, * * * terminated the employment of: 

Edmn H. Thompson July 30, 1945 

Lincoln F. Olsen " " " 

William Sherman " " " 

David Luchsinger " " " 

Harold L. Lonnberg " " " 



107 



Frank Marshall July 31, 1945 

Harry Smith ''^ '' '' 

Clyde Haynes '' '' " 

Sanford Moreau '' '' '' 

because of their refusal to adhere to policies of 
Warehouse Union Local 1-6 ILWU, a labor or- 
ganization, * * *. 

International Chemical Workers 
Union, A.F.L., 
By /s/ Harvey E. Howard, 
1440 Broadway, Oakland, Calif. HI-5922. 

Subscribed and sworn to before me this 13th 
day of August, 1945, at San Francisco, California. 
/s/ Merle D. Vincent, Jr., 
Field Examiner. 

Date filed August 14, 1945." (Italics ours.) (R. 
92-93.) 

We submit that the foregoing not only estabhshes 
the falsity of the Board's finding, but also constitutes 
an admission on the part of these men and the AFL 
that they were not discharged for activity on behalf 
of the AFL but "because of their refusal to adhere 
to policies of" the CIO. We know that the petitioner 
knew by this time that all of these men had violated 
at least one of these policies and that some of them 
were accused of failing to fulfill their duties of office 
and of failing to enforce the CIO's policy against 
racial discrimination. Under such circumstances, how 
can it be said that petitioner knew that the discharges 
had l)een requested to discourage the exercise of rights 
guaranteed bv Section 7 of the Act? 



108 



The Board's finding that on August 31, 1945, the Petitioner was 
again informed of a CIO threat to discharge employees is 
not supported by the record. 

The Board in its decision made the folowing find- 
ing: 

''On August 31, 1945, a C.I.O. representative 
told employee Norris that she was discharged for 
transferring from the C.I.O. to the A. F. of L. 
She reported the conversation to Production 
Manager Stanberr}^ who merely replied, 'He 
can't do that' " (R. 74.) 

The foregoing finding depends for its validity on 
the assumption that the employee, Norris, in reporting 
the conversation to Stanberry, also reported that she 
had been discharged "for transferring from the C.I.O. 
to the A. F. of L.". Mrs. Norris' testimony clearly 
shows that she made no such i-eport to Stanberry. 
Here is what she said: 

"Q. (By Mr. Royster) : Now, what was your 
conversation with Mr. Gleichman on this occasion, 
Mrs. Norris? 

A. I saw Mr. Gleichman coming. My machine 
was broken down, so I walked over to talk to one 
of the grls because he made it so tough for me 
the day before that I didn't want to get into an 
argument with him. Well, he followed me. He 
asked me if I had changed my mind, that he gave 
me time to go home and think it over, that I 
would drop A. F. of L. and stick by CIO. I told 
him 'No,' that I hadn't changed my mind. He 
said, 'I held a letter out for you until today.' 
He says, 'You are fired. You might as well get 
off the floor right now/ and I got off. 



109 



I walked over to Don Stanberry, the Superin- 
tendent, and I said I didn't see why I should be 
treated that way, that I didn't do anything. 

Q. Well now, just a minute. 

Just what did you tell Don Stanberry ? 

A. I said, 'That union fellow kicked me off 
the floor. He told me I was fired,' and he shook 
his head and he said, 'He can't do that.' 

So I said, 'Well, I am going dowTi to see Mr. 
Altman and find out if he can kick me off the 
floor.' 

I went downstairs, to the office, and Mr. Alt- 
man was not there, but Mrs. Olys was there. 

Q. That is 0-1-y-s. 

A. I don't know how she spells her name. 

Trial Examiner Ruckel: Who is she? 

A. She was at the time the timekeeper. 

Q. (By Mr. Royster) : And after a conversa- 
tion with Mrs. Olys what did you do ? 

A. She walked out on the platform with me, 
and she sad, 'Don't cry, Kay. You go right back 
up to your job,' and I did." (R. 484-485.) 

In connection with the foregoing it must be ob- 
served that Mrs. Norris had participated in the strike 
and that petitioner's representatives were entitled to 
infer that the threat to obtain her discharge would 
follow from this activity. 

The Board's fmding that the Petitioner discharged twenty-eight 
employees for permissible AFL activity is not sustained by 
the record. 

The Board found as follows : 

"Between August 31 and September 13, 1945, 
the respondent invoked the closed-shop contract 



110 

at the C.I.O.'s request and discharged the re- 
maining 28 complainants, including Zulaica and 
Norris, referred to above. In its brief before the 
Trial Examiner the respondent admitted knowl- 
edge by this time of the A. F. of L. activity of 
many of its employees, including by inference the 
aforesaid group of 28 complainants." (R. 74-75.) 

This finding, like so many others, depends for its 
validity on the tacit assumption that the twenty-eight 
employees involved had engaged solely and exclusively 
in permissible AFL activity designed to effect a 
change in bargaining representatives. We know, and 
the petitioner knew, that they all had participated in 
the strike, and, as it later developed, about half of 
them pleaded guilty to having taken part in this pro- 
hibited activity. The record also discloses that it was 
stipulated at the hearing, as we have shown elsewhere, 
that the majority of them had authorized the sending 
of the telegrams giving notice of withdrawal from the 
CIO. In connection with this finding, the Board 
makes much of the fact that the petitioner's Labor 
Relations Director, Wood, refused to accede to an 
"unofficial" request for the discharge of a large num- 
ber of employees. (R. 73-74.) It is the Board's posi- 
tion that this ''unofficial" request for discharge "must 
have furnished the respondent further evidence that 
the CIO was using its closed-shop contract as a means 
for removing its opponents among the employees". It 
could also be validly inferred from the facts that the 
CIO desired to discipline its membei's for this and 
other prohibited activities. It must be remem])ered 



Ill 



that the CIO, prior to this incident, had conducted a 
mass checking of dues books (R. 709-712), and that 
the CIO representative who made the unofficial re- 
quest for discharges stated to Mr. Wood that some 
of the persons involved were in bad standing, had not 
paid their dues or were not members of the CIO. 
(R. 729.) Frankly, we can see nothing sinister in Mr. 
Wood's efforts to prevent the discharge of a large 
number of petitioner's employees. There is nothing in 
this from which it could be reasonably inferred that 
Mr. Wood felt that he Avas at liberty to comply or not 
to comply with the contract as he saw fit. As a matter 
of fact, when Mr. Wood was officially advised by the 
CIO to release these persons, he complied. We submit 
that nothing can be made of Mr. Wood's efforts to 
mitigate the legal consequences which resulted from 
the performance of the closed-shop contract. 

The Board's conclusionary finding that Petitioner made no bona 
fide effort to evaluate the evidence is based on an invalid 
presumption, disregards a valid presumption and is con- 
trary to the record. 

If the distinction between '^permissible" and '^ pro- 
hibited" anti-CIO activities is observed in appraising 
the findings of the Board, we find that the petitioner 
had before it, except for the occasion when the five 
stewards were discharged, a set of facts which indi- 
cate permissible activities for and on behalf of the 
Welfare Association and the AFL as well as pro- 
hibited conduct not protected by the Act directed 
against the CIO. Such a situation would ordinarily 
bring into play the principle that malicious motives 



112 



do not render rightful conduct actionable as a wrong. 
Here the employees' prohibited conduct, independent 
of their permissible union activities, was of a char- 
acter which justified their discharge, even under the 
Board's own understanding of the law. (National 
Linen Service Corp. (1943) 48 N.L.R.B. 171, supra, 
at pp. 204-205.) Accordingly, the Board, for the pur- 
pose of giving support to its order has made the con- 
clusionary finding that "petitioner made no 'bona fide' 
effort to evaluate all the e\ddence before it when it 
allegedly decided, despite the CIO's failure to deny 
the obvious facts, to believe that the CIO was not 
acting in reprisal against the complainants because 
of their anti-CIO activity." (R. 79.) 

This finding, like all others, depends for its validity 
on the assumption that the "anti-CIO" activity of 
the employees was wholly permissible and on the 
following factors: 

(a) The presumption that Petitioner knew that 
under the Act it was its duty to evaluate the evidence. 
Unless this presimiption is postulated, the Petitioner 
cannot be charged with failing to "make a bona fide 
effort to evaluate the evidence". There is implicit in 
this a charge of "bad faith" based on the presumption 
that Petitioner knew the law, or the Board's view of 
the law. 

(b) Rejection of the uncontradicted testimony of 
Petitioner's representatives with respect to their in- 
ability to determine the true motives or reasons of the 
CIO. This rejection of uncontradicted testimony re- 



113 



quires that the presumption that Petitioner's officers 
acted in good faith be disregarded. This presumption 
cannot be disregarded because the testimony of Peti- 
tioner's officers was not impeached, is not inherently 
improbable, and bad faith cannot be attributed to 
them on the basis of the invalid presumption that they 
had knowledge of the Board's view of the law. 

(a) The finding that the Petitioner made no effort to evaluate the evi- 
dence before it is invalid because it is based on the equally invalid 
presumption that the Petitioner knew of the Board's view of the 
law. 

It mil be noted that in its decision in this matter, 
the Board announced for the first time that in cases 
of this type the Petitioner must make a bona fide 
effort to evaluate the evidence before it, relative to 
the Union motive in demanding an employee's dis- 
charge. ("Guide to National Labor Relations Act", 
Tucker, page 226 (1947) Commerce Clearing House, 
Inc.) Prior to that time, and only after overruling 
its decision in the Ansley case, supra (18 X.L.R.B. 
1029), the Board had held that imder the Act, if the 
employer had knowledge that the discharge was re- 
quested because of permissible Union activity, the Act 
was violated. But it had not placed on the employer 
an affirmative duty of e\'aluating or weighing the evi- 
dence. As a matter of fact, the Board had refused, 
\\j) to the time of its decision herein, to pass upon the 
contention that the employer ''had a duty to inquire 
concerning the reason" for the discharge of an em- 
ployee. (Diamoyid T Motor Company (1945), 64 
N.L.R.B. 1225-1226.) There is no presumption that 



114 

Petitioner had knowledge of these decisions of the 
Board^^ and even if it could be shown that it had 
actual knowledge thereof, there was nothing in them 
which would have informed the Petitioner of the af- 
firmative duty which the Board has imposed upon it. 
The Board's Trial Examiner, who presided at the 
hearing of this case, and who is to be presumed to 
have had some knowledge of the law and the decisions 
of the Board, did not think that any such duty rested 
on the Petitioner. In his intermediate report, he 
stated : 

^^ Assuming, for the moment, that the respond- 
ent believed that both factors prompted the 
C.I.O.'s request, the undersigned knows of no 
feasible method by which the respondent could 
determine which factor was the motivating one 
in the C.I.O.'s decision to invoke the closed-shop 
provision of the contract." (R. 59.) 

In a footnote appended to the foregoing quotation, 
he said: 

''Or is the presence of an illegitimate motive 
alongside a legitimate one, sufficient, as the Board 
has frequently ruled where discharges absent a 
closed shop are concerned, to render a discharge 
violative of the Act? The undersigned does not 
believe that it is." (R. 59.) 

And he concluded on the basis of a case theretofore 
decided by the Board, as follows: 



23" Litigants are not bound to take notice of executive decisions 
on legal questions," Todd v. S.E.C. (1943; CCA 6th), 137 F. (2d) 
475, at p. 479. 



115 



^'Here, again, as in the case of the stewards and 
the committeemen, the respondent was under no 
duty to investigate to ascertain the real motive 
of the C.I.O. where there was eviderice that con- 
flicting motives existed. As the Board said in the 
Diamond T case: 

While the respondent knew of the activities 
of these employees on behalf of the Union 
during the pendency of a question concerning 
representation, it does not follow that the Inde- 
pendent was motivated by such activities and 
not by lawful considerations in demanding their 
discharge. 

In the Diamond T case, the respondent did not 
have knowledge of any activity by the employees 
in question which might have prompted a demand 
for their discharge, other than their activity on 
behalf of the rival union. In the instant case, 
the respondent had knowledge of at least two 
other facts, one, participation by the employees 
in an unauthorized strike, and the other, the an- 
nouncement of their withdrawal of union mem- 
bership — either of which furnished a lawful basis 
for suspension by the Union." (Italics ours.) 
(R. 62.) 

It is submitted, therefore, that for Petitioner to 
have known that it was required to weigh and evalu- 
ate evidence it would have to be presumed that its 
officers were endowed with an acuteness and a knowl- 
edge of the law not ordinarily possessed by judges 
and lawyers and seldom, if ever, attributed to lay- 
men. In proof of this, we need only offer the irrecon- 
cilable conflict existing between this Circuit and the 



116 



7th Circuit on the basic question of law herein in- 
volved. 

Since it is patent that the Petitioner could not have 
had actual knowledge of the law as viewed by the 
Board, it is apparent that the charge of l:)ad faith oi' 
lack of good faith in evaluating or weighing the evi- 
dence must rest on the presumption that petitioner 
knew the law. However, the Board may not rely on 
the presumption that all persons are deemed to know 
the law in order to establish bad faith or lack of good 
'faith on the part of Petitioner. The general rule 
which prohibits the Board from relying on this pre- 
sumption has been stated as follows: 

''A knowledge of law will not be presumed in 
order to charge a party with bad faith, nor is 
there, on the question whether or not one has 
acted corruptly, a conclusive presiunption that 
he knows the law." (31 C.J.S. Evidence, Sec. 173, 
p. 760.) 

There is also no presiunption that anyone knows 
how the Courts, much less administrative tribimals, 
will construe law. The rule in this respect has been 
stated as follows : 

'' Persons are not presumed to know how the 
Courts will construe the law * * *." (31 C.J.S. 
Evidence, Sec. 132, p. 760.) 

It is definitely established, therefore, that the Board 
cannot rely on any such presumption to attribute bad 
faith to Petitioner. It is also well to note that the 
difference in view which existed between Petitioner's 
counsel and the Board is evidenced bv the record and 



117 



furnishes ample proof of the fact that Petitioner 
acted in good faith after heing advised by its said 
counsel of what its duties were under the Act. The 
record discloses the following with respect to this 
matter : 

'^Q. Not at that time. Did you and Mr. 
Railey do anything about getting legal coimsel in 
connection with the interpretation of your col- 
lective bargaining agreement with the ILWU? 

A. Yes, sir. 

Mr, Rowel] . Well, Mr. Examiner, that is a 
similar inquiry that I tried one time. 

Mr. Hecht. That state of mind of these per- 
sons, Mr. Examiner. 

Mr. Edises. A question of good faith enters 
in here, Mr. Examiner. 

Trial Examiner Ruckel. He may answer. 

A. Yes, we did. 

Q. (By Mr. Hecht). And what is it you did? 

A. Well, when I returned Mr. Railey showed 
me a letter from Clark & Heafey. 

Q. What are they? 

A. Attorneys. They had been our regular 
attorneys in Oakland. In which they advised 
that 

Q. (By Mr. Hecht). And did you act in ac- 
cordance with that advice ? 

A. We did. 

Q. Directing your attention to Section 3 of 
the contract, were you advised that you had to 
comply with the terms of that Section 3 strictly? 

A. We were. 

Q. Were you further advised that you could 
not set yourselves up to judge the justice of 
putting these men in bad standing? 



118 

A. We were. 

Q. And you acted accordingly? 

A. We did so." (R. 726-727.) 

The foregoing proves beyond doubt Petitioner's 
motive was entirely innocent when it failed to weigh 
or evaluate the conflicting evidence before it. 

**The maxim that ignorance of the law excuses 
no one is not so broad in its application that a 
mistake of law cannot be shown in evidence for 
the purpose of ascertaining the state of one's 
mind or one's motive." 

Schott V. Dosh (1896), 49 Nebr. 187, 196, 197, 
68 N. W. 346, 350, 59 Am. St. Rep. 531, at 
p. 538. 

It is submitted, therefore, that the Board has not 
only relied on an invalid presumption to charge the 
petitioner with bad faith but also has disregarded 
evidence in the record which establishes beyond doubt 
that its motives were innocent. 

Cb) The Board cannot sustain its finding by rejecting the uncontradicted 
testimony of Petitioner's officers respecting their inability to ascer- 
tain the true motives of the reasons of the CIO. 

We submit that there is nothing in the record which 
shows that the testimony of Petitioner's officers re- 
specting their inability to ascertain the true motiva- 
tion of the CIO is inherently improbable or has been 
impeached. We also submit that the Board has 
pointed to nothing which indicates impeachment or 
improbability, except for its conclusionary finding of 
i'ddk of good faith which is, as we know, based on an 



119 



invalid presumption. Nevertheless, the Board, in its 
decision, states: 

''Unlike the Trial Examiner, we do not view 
the conclusionary testimony by various repre- 
sentatives of the respondent, to the effect that 
the respondent did not 'know' that this was the 
C.I.O.'s motive, as establishing the respondent's 
lack of knowledge of such motive." (R. 76.) 

In failing to credit this testimony, the Board is in 
fact presuming the liability and the bad faith of these 
persons, or it has, at best, chosen to draw from facts 
equally susceptible of a contrary inference, the in- 
ference that the Petitioner's officers were acting in 
bad faith. Basically the fact is that the Board has 
found the Petitioner guilty of bad faith and not 
worthy of belief because its officers were unfortimate 
enough to arrive at conclusions different from those 
of the Board. If the reasoning of the Board were 
valid, all first instance tribunals could be stigmatized 
as being not in good faith whenever Appellate Courts 
have differed with them as to the conclusions that 
may be drawn from a given set of facts. If this were 
true, the Board's own position would be unenviable. 
We contend in view of the Board's erroneous 
premise that there is nothing in the record justifying 
its rejection of this testimony. We also contend that 
under well established rules of law, the Board should 
have accepted this uncontradicted testimony and 
foiuid that the Petitioner did not know the true 
reasons motivating the CIO. 

It is clear that in the absence of impeachment or 
inherent improbability that the trier of the facts 



120 



may not indulge in an inference when the inference 
is rebutted by clear, positive and uncontradicted evi- 
dence. {Hicks V. Reis (1943), 21 Cal. (2d) 654, 660, 
661, 134 Pac. (2d) 788, 791.) The testimony of 
Petitioner's officers was that due to the many legal 
causes which the CIO had for suspending its mem- 
bers, it could not ascertain whether it was actuated 
by proper or improper motives. We submit that this 
testimony was clear, positive and uncontradicted and 
that it may not be rejected in favor of an invalid in- 
ference having its origin on a prohibited presumption. 

In addition, the l3oard never overcame the pre- 
sumption of good faith and fair dealing which ac- 
companied Petitioner through every stage of this 
proceeding. 

"For, if there be two inferences equally rea- 
sonable and equally susceptible of being drawn 
from the proved facts, the one favoring fair 
dealing and the other favoring corrupt practice, 
it is the express duty of court or jury to draw the 
inference favorable to fair dealing." (Italics 
ours.) {Ryder v. Bamberger (1916), 172 Cal. 
791, pp. 799-800, 158 Pac. 753, 756; see also U. S. 
V. Calif. Midivay Oil Co. (1919), 259 Fed. 343, pp. 
352, 353.) 

The findings of the Board as to the CIO's alleged illegal motiva- 
tion must be rejected because the record discloses that the 
CIO had a compelling and valid reason for requesting a dis- 
charge of its delinquent members. 

We offer in support of our argument on this phase 
of the case, the comments of the Trial Examiner on 
the conduct of the 'CIO and its delinquent members. 



121 



We believe that they reflect the only valid and the 
only reasonable conclusions which an unbiased ap- 
praisal of the uncontradicted facts could achieve. 

''It may be reasonably argued that the respond- 
ent's knowledge was immaterial in the case of the 
stewards, and that the Union would be justified in 
expelling and the respondent in discharging them 
even though their 'bad standing' in the C.I.O. was 
founded on dual unionism alone. This view takes 
cognizance of the difference in the degree in 
loyalty owed by a functionary of a union and a 
rank and file member, and the strategic position 
which a steward or an officer occupies in the ad- 
ministration of a imion. As has been found, the 
stewards here were charged and found guilty 
eventually by the C.I.O. of sabotaging the policies 
of the international organization. It may well be 
that if a steward or other functionary of a labor 
organization seeks to supplant that organization 
with a competing labor organization, he should 
first resign his office, and that if he does not, but 
engages in dual unionism, the first union may 
expel him even though by so doing it places him 
in the line of discharge by the employer." (R. 55- 
56; italics ours.) 

''That the contracting union might properly 
discipline members for participating in a strike 
called in violation of union policy, by suspending 
or expelling them, seems to the imdersigned 
hardly open to question. A labor organization, no 
less than any other organization, cannot be denied 
the authority to compel compliance with the deci- 
sions of its membership. 'Good standing' in an 
organization implies something more than the 
mere payment of dues." (R. 63.) 



122 



With this view of the facts in mind, the following 
taken from Wyman-Gordon Co. v. N.L.R.B. (1946, 
CCA 7th), 153 Fed. (2d) 480, p. 489, is entirely 
applicable in judging the CIO's conduct: 

''We think it is unnecessary to discuss further 
the circiunstances connected with the discharge of 
Coale and Crince. They have all been considered 
and we are unable to agree that there is any 
substantial basis for the conclusion that they were 
discriminatorily discharged. It is almost incon- 
ceivable to think that petitioner in order to rid 
itself of these admitted trouhlemakers (and this 
includes Bakei') luoidd have resorted to a viola- 
tion of the Act wheri it had numerous justifiable 
reasons for their discharge. The record over- 
whelmingly discloses, with no evidence of any 
probative value to the contrary, that the discharge 
of Baker, Coale and Crince was not only justified 
but required." (Italics ours.) 

It is evident that the activity of the discharged em- 
ployees could have resulted in something more than 
just the loss of bargaining rights at petitioner's plant 
in so far as the CIO was concerned. It could have re- 
sulted in the sabotaging of policies valued by the 
majority of its members with the consequent loss of 
morale and authority, which if allowed to go un- 
checked could have developed in the total destruction 
of the Union. 

In view of these compelling circumstances, it must 
be conceded that the Board's findings are acceptable 
only if it is held that when a partisan of the AFL was 
discharged, the fact of his partisanship raises a pre- 



123 



sumption that the ground assigned for his discharge 
was a false one. That such a presumption may not be 
relied upon is clear. 

''When it is further considered that during the 
period in question, when these discharges occur- 
red, from April 1, 1937, to August 21, 1937, 74 
employees were discharged or laid off by respond- 
ent, of which only 24 were members of United, 
and that in each case of a discharge, the reason 
given for it really existed, it is clear that the 
finding of the Boards that that reason will not he 
accepted as the real one but must he recognized 
as a pretext, is hased entirely on suspicion and 
amounts in effect to the holding that when a 
United man commits a fault and is discharged, 
the fact of his Unionism raises a presumption 
that the ground assigned ivas a false one. Matters 
of this kind may not be decided on suspicion, sur- 
mise and feeling, rather than on evidence, and 
findings resting on these bases may not stand." 
(Italics ours.) (N.L.R.B. v. Goodyear Tire <£• 
Ruhher Co. (1942, CCA 5th), 129 Fed. (2d) 661, 
at p. 667.) 

It is uncontradicted that all of the discharged em- 
ployees in some fashion participated in the strike, and 
that the CIO found them guilty of undermining its 
policies, including the policy against wartime strikes. 
Under such circumstances, the Board is not justified 
in resting its findings on suspicion and surmise, par- 
ticularly in view of the fact that many employees who 
participated in permissible AFL activity were not dis- 
turbed by the CIO and remained in the petitioner's 
employ. (R. 736-738.) 



124 



CONCLUSION. 

The basic question as to whether the Board has 
acted in excess of its powers in prohibiting the coer- 
cion of employees by labor organizations, in regulat- 
ing the internal affairs of unions and in forbidding the 
performance of valid ''closed shop'' contracts, is one 
which this Court has already decided adversely to our 
views in Local 2880, etc. v. N.L.B.B., supra. We trust, 
however, that the Court will, after considering the 
arguments and authorities urged in support of our 
position, rule in harmony with the decisions of the 
Seventh Circuit. 

Should the Court again uphold the views of the 
Board on this question of law, we feel confident, 
nevertheless, that the Court will rule the doctrine of 
the Rutland Court Owners case, supra, to be inap- 
plicable to the facts disclosed by the record. 

The Board by its decision in the instant case, cuts 
across well-established principles of law and forces 
upon the Petitioner the functions of a trial judge 
without first having furnished it any rules or stand- 
ards to guide it in the exercise thereof. The Board 
not only requires the Petitioner to take on the attri- 
butes of a judge, but also imposes upon it extraor- 
dinary and eccentric duties both as judge and as 
obligor under an admittedly valid contract. 

First, it requires the Petitioner to evaluate and 
weigh evidence, but fails to state whether the Peti- 
tioner is authorized, as was the Board, to draw ''either 
of two inconsistent inferences from the evidence" and 



125 



to base a finding on the one so selected, or whether it 
should have, as judges ordinarily do, found that since 
the proven facts gave equal support to inconsistent 
inferences, that the illegal motivation of the CIO had 
not been established. Under either of these rules or 
standards the Petitioner would have been entitled to 
find that the CIO was not motivated by a desire to 
coerce its members, but it is evident that the Board 
does not intend to permit the Petitioner to exercise 
its duties of weighing and evaluating the evidence 
under either of these standards, and that it is punish- 
ing the Petitioner because it drew from the proven 
facts a reasonable inference, inconsistent, however, 
with that drawn by the Board. This we submit is 
arbitrary and capricious and without any support 
whatsoever in the National Labor Relations Act. 

Second, it requires the Petitioner before it performs 
a valid contract to probe the state of mind and the 
mental processes of the obligee, all contrary to the 
well-established principle of law that a malicious mo- 
tive does not convert the exercise of a legal right into 
actionable conduct. 

Third, it compels the Petitioner to declare a valid 
contract unenforceable because, as obligor it is al- 
leged to have knowledge that the obligee intended by 
means of the contract to violate some law or public 
policy, all contrary to the well-established principle 
that it is no defense to the performance of a contract 
that the obligor knows that the agreement or its per- 
formance might aid the obligee to violate the law. 



126 

Not satisfied with burdening the Petitioner with this 
impossible task, the Board culminates its arbitrariness 
by casting upon the Petitioner the stigma of not 
being in good faith because it did not foresee that the 
Board by administrative fiat would cast upon it such 
extraordinary duties and would formulate such novel 
and eccentric rules and standards. 

We submit, therefore, that the decision and order of 
the Board herein is arbitrary, constitutes an abuse of 
discretion, is in excess of its powers, and deprives the 
Petitioner of property without due process. 

Dated, San Francisco, 
April 20, 1948. 

Respectfully submitted, 

Philip S. Ehrlich, 
Bartley C. Crum, 
R. J. Hecht, 

Attorneys for Petitioner. 



(Appendix Follows.) 



Appendix. 



Appendix 

Testimony of Albert Zulaica. 

''The Witness. Well, he says, 'I think that you 
fellows have been misled,' he says, 'because we can 
throw you people out of wearing those AFL buttons.' 
I said, 'Well, you can't do that.' I said, 'If you start 
doing that you will have to throw the majority out 
because most of them are wearing an AFL button.' 

Trial Examiner Ruckel. Most of them what? 

The Witness. Most of them wearing AFL buttons. 

Trial Examiner Ruckel. In the plant? 

The Witness. In the plant, yes. Then he says, 
'We don't have to do that.' He says, 'We can pick 
some of you out, throw |you out and claim that you 
were leaders, and that will scare the rest of them.' 
And I said, 'Well, we don't scare so very easy as all 
that.' I says, 'You will have to throw all of us out 
before we will ever stop,' I said, 'because most every- 
one here is fed up with the CIO.' 

Then he says to me, 'Are you an enemy of the 

CIO I' and I said, 'No, I am not. I praise the CIO, 

they have a very good policy,' I said, 'but it is the 

officers of that local that makes it so hard for us to 

get along.' And then heisays, 'Then you won't change 

your mind?' and I said, 'No, absolutely not, not until 

you people at the office do the right thing for us.' 
* * * * » * at 

Q. (By Mr. Royster) Now, did you report this 
conversation to anyone? 



u 



A. I couldn't report that conversation right then 
because there were no officials of the company present 
at the time. They had all gone home. But on Monday 
morning I reported it to Mr. Mason. 

Q. And who is Mr. Mason? 

A. He is the foreman of the Toilet Department. 

Q. Well, what did you tell Mr. Mason f I don't 
want you to necessarily give the exact words of what 
you told him, but what portion of this conversation, 
if not all of it, did you report to Mr. Mason? 

A. Well, what I really wanted to find out at the 
time was — like I said to Mr. Mason, that I wanted 
to know if those people had a right to come in the 
plant any time they felt like it. And I said, 'I would 
like to have you talk to Stanberry, or Altman, and 
find out what it is all about.' That is all I said to 
Mason. 

Q. Well, did you have any further conversation 
with Mr. Mason? 

A. He came to me about two or two and a half 
hours later, and he told me that he had spoken to Mr. 
Stanberry and that Stanberry said that the reason we 
were having so much trouble was because we were 
wearing AFL buttons. * * * 

Q. (By Mr. Royster) Well, did you have any 
conversation with Mr. Stanberry? 

A. Well, just a few words. I think it was in the 
afternoon. 

Q. Of what day? 

A. That same day, that Monday, August 13. 



Ul 



Q. All right. 

A. He was coming from the Seafoam Department, 
and he was in kind of a hurry, and I asked him if 
I could have a word with him. And I will say this 
much for him, he always stopped to listen to anyone 
that wants to talk to him even if he is in a hurry. 
So he stopped. Then I told him, I said, 'Did Mason 
talk to you?' He said, 'Yes,' he says, 'and I think 
all your trouble is because you are wearing those but- 
tons. If you take them off you won't have that trou- 
ble, see. You can keep that in your heart and take 
your buttons off. They could never take that out of 
your heart if you wanted to go into another union.' 
And he just went by." (R. 310-311-312.) 



Testimony of Don E. Stanberry. 

"Q. During the month of August did Mr. Zulaica 
come to you with a complaint about having been 
threatened for wearing an AFL button and elec- 
tioneering for AFL? 

A. Perhaps, direct; either directly or indirectly. 
I don't remember whether it was directly from him 
or through his foreman. 

Q. Do you recall the nature of the complaint? 

A. Well, the complaint was that Charles Leacock 
and other identified colored people were threatening 
the men at night. 

Q. Was the reason for the threat given you? 

A. I believe they stated it was connected with 
wearing AFL buttons. 



IV 

Q. Did you take any action in connection with 
that? 

A. I did not. 

Q. Did you speak to Mr. Zulaica about the matter? 

A. Yes, I did. 

Q. By the way, what was Mr. Leacock's position? 

A. Mr. Leacock was porter, and he was also a 
CIO steward. 

Q. I take it Mr. Leacock did not hold any fore- 
man's position, any supervisory position? 

A. He held no supervisory position whatsoever. 

Q. Did you hold a conversation with Mr. Zulaica 
with respect to his dealings with Mr. Leacock? 

A. Yes, I did. 

Q. And will you give us the burden of the conver- 
sation ? 

A. Well, it was more in the nature of a request 
from Zulaica for advice as to what to do in the 
situation, the general situation as well as this par- 
ticular incident. And I went over the whole situation 
with him from beginning to end, and pointed out that 
the best legal advice we had been able to obtain sub- 
stantiated the fact that our present CIO contract was 
valid, and that that required that anyone working for 
the company would have to be a member of the CIO 
Union, and also be in good standing. I also pointed 
out that what meant to be in good standing we did 
not know, and the union had never told us the exact 
reason for the previous dismissals or suspensions, I 
should say, other than that they were not in good 
standing. 



Q. Did you advise him that Mr. Leacock had as 
much a right to express an opinion in the controversy 
as anybody else? 

A. That is quite true. 

Q. Did you advise him to avoid controversy with 
Mr. Leacock? 

A. Well, I told him the best thing was to try to 
smooth it over as easily as he could." (R. 717-718.) 



Ko. 11514 



In the United States Court of Appeals for the 
Ninth Circuit 



Colgate-Palmolive-Peet Company, petitioner 

V. 

National Labor Eelations Board, respondent 
and 

Intkknational Chemical Workers TTnion% A. F. L., et al., 

intervenors 

and 

Warehouse Union Local G, International Longshoremen's & 

Warehousemen's Union (CIO), intervenor 

aiul 
N Ai i<)\AL IjABok Relations Board, PEirri.MM i; 

V. 

( '( >i(; ati;-Palmol[vk-Pf.i;t ( \)Mpany, respondent 



ON PETITION TO REVIEW ASD SET ASIDE AM) U;V REQUEST 
FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR 
RELATIONS BOARD 



BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD 



DAVID P. FINDLINO, 

.1 SHOciate General Counsel, 
RUTH WEYAND, 

Acting Assistant General Counsel, 
MARCEL MALLET-PREVOST, 
BERNARD DUNAIT, 

Attorneys, 
National Labo)- Relations Board. 



Tu be argued by : )sw" | . 

A. NORMAN SOMERS, '" " **^, 

Assistant General Counsel. 



P,0*BWBN, 



INDEX 

Page 

Jurisdiction 1 

Statement of the case 3 

I. The Board's findings of fact 3 

A. The closed-shop agreement between the employer 

and the C. I. O '.. 5 

B. The employees' dissatisfaction with the C. I. O. and 

the preliminary steps taken by them to change 
representatives 6 

C. The employer, knowing the C. I. O.'s discriminatory 

purpose, accedes to the C. I. O.'s request to dis- 
charge the stewards and the committeemen for 
their leadership of the rival union activities 8 

D. The employer's knowledge of events preceding its 

refusal to reemploy the stewards and the commit- 
teemen and its discharge of the twenty-eight 
additional employees at the C. I. O.'s request ap- 
prising the employer of the C. I. O.'s discrimina- 
tory purpose 13 

1. The employer's knowledge of events re- 

lating to formal Board proceedings 
dealing with the rival union activities.- 14 

2. The employer's knowledge of the C. I. O.'s 

retaliatory campaign 15 

3. The employer's knowledge of threats to 

A. F. L. adherents by the C. I. O 17 

E. The employer, knowing the C. I. O.'s discriminatory 

purpose, accedes to the C. I. O.'s request to dis- 
charge the twenty-eight additional employees for 
their rival union activities, and refuses to reem- 
ploy the stewards and the committeemen 19 

1. The refusal to reemploy the stewards and 

the committeemen on August 17 20 

2. The discharge of six employees on August 

31 21 

3. The discharge of eighteen employees on 

Septem.ber 1 21 

4. The discharge of four employees on Sep- 

tember 5, 7, and 11 23 

F. The C. I. O.'s subsequent trial of the discharged 

employees 24 

II. The Board's conclusions of law 26 

III. The Board's order 27 

Summary of argument 28 

804666 — 48 1 (I) 



TI 

Page 

Argument 31 

I. The closed-shop proviso to Section 8 (3) of the National Labor 
Relations Act does not protect the employer in discharges 
of employees for rival union activities occurring at a time 
when employees may appropriately change bargaining 
representatives 31 

A. The employer's challenge to the soundness of this 

Court's approval of the Rutland Court doctrine 

in the Local 2880 case 33 

B. The employer's contention that it is placed in the 

role of a judge of the union's activities 36 

II. The Board's finding that the employer knew of the C. I. O.'s 
discriminatory purpose when it acceded to the C. I. O.'s 
request to discharge, and when it refused to reinstate, the 
thirty-seven named employees is supported by substantial 
evidence 39 

A. The evidence showing knowledge ,__ 42 

B. The employer's contentions , 51 

1. The employer's asserted reliance upon the 

telegram of July 31 as an act of withdrawal 

from the C. I. O 51 

2. The employer's asserted inability to distin- 

guish between legitimate and discrimina- 
tory C. I. O. purpose 54 

3. The employer's asserted confusion because 

the C. I. O. requested the discharge of 
many but not all A. F. L. adherents 60 

III. The period during which the employees undertook their rival 

union activities was appropriate for a redetermination of 
bargaining representatives 61 

IV. The Board's construction of the closed-shop agreement is 

consistent with California local law, and in any event 

federal law is paramount to local law 64 

V. The Board's decision and order do not violate the due process 

clause of the Fifth Amendment 67 

Conclusion 67 

Appendix 68 

AUTHORITIES CITED 
Cases : 

Aluminum Company of America v. A^. L. R. B., 159 F. 2d 523 

(C. C. A. 7) 32 

American Federation of Labor v. A^. L. R. B., 308 U. S. 401 35 

Bautista v. Jones, 25 Cal. 2d 746, 155 Pac. 2d 343 64 

Bethlehem Steel Co. v. A^. Y. State Labor Relations Board, 330 

U. S. 767 65 

E. L. Bruce Co., Matter of, 73 N. L. R. B. 992 40 

Burwell's Admr.'s v. Fauber, 21 Graft. 446 39 

Butler Bros. v. N. L. R. B., 134 F. 2d 981 (C. C. A. 7), certiorari 

denied, 320 U. S. 789 60 

Colonic Fibre Co., Inc. v. A^. L. R. B., 163 F. 2d 65 (C. C. A. 2).. 32 



Ill 

Cases — Continued. Page 

Consumer's Research, Inc., Matter of, 2 N. L. R. B. 57 60 

Cupples Co. Mfrs. v. N. L. R. B., 106 F. 2d 100 (C. C. A. 8) 60 

Diamond T. Motor Car Co., Matter of, 64 N. L. R. B. 1225 40 

Doxo Chemical Co., Matter of, 13 N. L. R. B. 993, enforced, 117 

F. 2d 455 (C. C. A. 6) 60 

Durasteel Co., Matter of, 73 X. L. R. B. 941 40 

Fitrol Corp., Matter of, 74 X. L. R. B. 1307 63 

Hamilton, Harold v. N. L. R. B., 160 F. 2d 465 (C. C. A. 6) 65 

Hill V. Florida, 325 U. S. 538 65 

Jerome v. United States, 318 U. S. 101 66 

Kansas City Power & Light Co. v. N. L. R. B., Ill F. 2d 340 

(C. C. A. 8) 60 

Letter man Becker & Co., Inc., In re, 260 Feb. 543 (C. C. A. 2), 

cert. den. sub nom, Coleman & Co. v. Towas Co., 250 U. S. 668-_ 37 
Local 2880 v. A^. L. R. B., 158 F. 2d 365 (C. C. A. 9), certiorari 

granted 331 U. S. 798, certiorari dismissed on motion of pe- 
titioner, 332 U. S. 845 3, 26, 32, 33, 34, 35, 55 

Lone Star Gas Co., Matter of, 52 X. L. R. B. 1058 60 

Marinship Corp. v. James, 25 Cal. 2d 721, 155 Pac. 2d 239 64 

Medo Photo Supply Corp. v. N. L. R. B. 321 U. S. 678 33 

Lewis Meier & Company v. A^. L. R. B., 21 L. R. R. M. 2093 (C. 

C. A. 7, Xovember 3, 1947) 32 

A^ L. R. B. V. Aladdin Industries, Inc., 125 F. 2d 377 (C. C. A. 7), 

certiorari denied, 316 U. S. 706 61 

N. L. R. B. V. American White Cross Laboratories, Inc., 160 

F. 2d 75 (C. C. A. 2) 32,38 

A^. L. R. B. V. The Austin Co., 165 F. 2d 592 (C. C. A. 7) 41 

A^. L. R. B. V. M. E. Blatt Co., 143 F. 2d 268 (C. C. A. 3) 41 

A^. L. R. B. V. Caroline Mills, Inc., 167 F. 2d 212 (C. C. A. 5) 41 

A^^. L. R. B. V. Columbian Enameling & Stamping Co., Inc., 306 

U. S. 292 37 

N. L. R. B. V. Falk Corporation, 308 U. S. 453 28 

A'. L. R. B. V. Gluek Brewing Co., 144 F. 2d 847 (C. C. A. 8) 60 

A^ L. R. B. V. Hearst Publications, Inc., 322 U. S. Ill 65, 66 

N. L. R. B. V. Jones & Laughlin Steel Corp., 301 U. S. 1 67 

N. L. R. B. V. Laister-Kauffman Aircraft Corp., 144 F. 2d 9 

(C. C. A. 8) ■ 41 

A^. L. R. B. V. Luxuray, Inc., 123 F. 2d 106 (C. C. A. 2) 61 

A^ L. R. B. V. Mackay Radio & Telegraph Co., 304 U. S. 333 67 

A^. L. R. B. V. Pacific Greyhound Lines, Inc., 91 F. 2d 458 (C. C. 

A. 9), modified on other grounds, 303 U. S. 272 38 

A^. L. R. B. V. Reeves Rubber Co., 153 F. 2d 340 (C. C. A. 9) 40 

A^. L. R. B. V. Remington Rand, Inc., 94 F. 2d 862 (C. C. A. 2), 

certiorari denied, 304 U. S. 576 GO 

N. L. R. B. V. Sandy Hill Iron & Brass Works, 165 F. 2d 660 (C. C. 

A. 2) , 41 

A^ L. R. B. V. Security Warehouse & Cold Storage Co., 136 F. 2d 

829 (C. C. A. 9) 41,48 

A^. L. R. B. V. Star Publishing Co., 97 F. 2d 465 (C. C. A. 9) 67 



IV 

■Cases — Continued. Pago 

Phelps-Dodge Corp. v. N. L. R. B., 313 U. S. 177 48, 67 

Portland Lumber Mills, Matter of, 64 N. L. R. B. 159, enforced 

sub nom, Local No. 2880 v. A^. L. R. B., 158 F. 2d 365 (C. C. A. 

9), certiorari granted, 331 U. S. 798, dismissed on motion of 

petitioner, 332, U. S. 845 26 

Puritan Ice Co., Matter o/, 74 N. L. R. B., 131 1 63 

Rice V. Board of Trade, 331 U. S. 247 65 

Rice V. Santa Fe Elevator Corp., 331 U. S. 218 65 

Rutland Court Owners, Inc., Matter of, 44 N. L. R. B. 587, 46 

N. L. R. B. 1040 3,26,31,33,65 

Simmons Creek Coal Co. v. Doran, 142 U. S. 417 39 

Spicer Manufacturing Corp., Matter of, 70 N. L. R. B. 41 40 

A. E. Staley Mfg. Co. v. A^. L. R. B., 117 F. 2d 868 (C. C. A. 7). 41 

Thomas v. Collins, 323 U. S. 516 57 

Triplex Screw Co. v. N. L. R. B., 117 F. 2d 858 (C. C. A. 6) 61 

United Dredging Co., Matter of, 30 N. L. R. B. 739 60 

Wallace Corporation v. N. L. R. B., 323 U. S. 248 32, 38 

Wells, Inc. V. A^. L. R. B., 162 F. 2d 457 (C. C. A. 9) 52, 59 

Williams v. International Brotherhood of Boilermakers, 27 Cal. 2d 

586, 165 Pac. 2d 903 64 

Statutes: 

National Labor Relations Act (49 Stat. 449, 29 U. S. C, Sec. 151, 

et seq.) 2, 68 

Section 7 32, 68 

8 (1) 3 

8 (3) 3,68 

9 (a) 69 

9 (c) 69 

10 (c) 69 

10 (e) 70 

National Labor Relations Act, as amended (61 Stat. 136, 29 

U. S. C. A., Supp. July 1947, Sees. 141, et seq.) 2, 71 

Section 101 71 

7 71 

8(a) (3) 71 

8 (a) (3) (A) 32,72 

8(a) (3) (B) 32,72 

8(a)(3)(C) 36 

8(b) (2) 32,72 

9 (a) 72 

9 (c) (1) 36,73 

9 (c) (1) (A).. 73 

9 (c) (1) (B) 73 

9 (e) (1) 74 

9(e) (2) 74 

10 (3) 74 

102 75 

Labor Management Relations Act, 1947 (61 Stat. 136, 29 V. S. C. 

A. Supp. July 1947, Sees. 141, et seq.) 2 



Miscellaneous: Page 

93 Cong. Record 1825 36 

House Report No. 1147, Committee on Labor, 74th Cong., 1st 

Sess., p. 22 35 

Legislative History of the Labor Management Relations Act, 1947 

(Govt. Print. OS., 1948), p. 238 36 

National Labor Relations Board, Eleventh Annual Report 

(Govt. Print. Off., 1947), p. 14 63 

National Labor Relations Board, Twelfth Annual Report (Govt. 

Print. Off., 1948), pp. 9, 10 62, 63 

Restatement, Restitution, Sec. 7, Comment a 51 

Senate Report No. 573, 74th Cong., 1st Sess., pp. 2-4 66 

Senate Report No. 105, 80th Cong., 1st Sess., pp. 20, 21-22 36, 39 

15 U. of Chi. L. Rev. 232 (1947) 32 

33 Va. L. Rev. 521 (1947) 32 

3 Williston, Contracts, Sec. 1 157 (Rev. Ed. 1936) 37 

56 Yale L. J. 1058 (1947) 32 



In the United States Court of Appeals for the 
Ninth Circuit 



Xo. 11514 
Colgate-Palmolive-Peet Company, petitioner 

V. 

National Labor Relations Board, respondent 

and 

International Chemical Workers Union, A. F. L., et al., 

inter VENORS 

and 

Warehouse Union Local 6, International Longshoremen's & 
Warehousemen's Union (CIO), intervenor 

and 

National Labor Relations Board, petitioner 

V. 
C0LGATE-PALM0LI^^:-PEET CoMPANY, RESPONDENT 



ON PETITION TO REVIEW AND SET ASIDE AND ON REQUEST 
FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR 
RELATIONS BOARD 



BHIEF FOR THE NATIONAL LABOR RELATIONS BOARD 



JURISDICTION 

This case is before the Court upon the petition 
(R. I, 101-126)' of Colgate-Palmolive-Peet Company, 

1 uj^?' refers to the printed transcript of record. The roman 
numerals preceding the comma refer to the volume of the printed 
record in which the reference appears. The arable numerals fol- 
lowing the comma refer to the pages of the volume of the printed 
record in which the reference appears. 

(1) 



lierein called the employer, to review and. set aside 
an order issued by the Board against the employer on 
September 6, 1946, pursuant to Section 10 (c) of the 
National Labor Eelations Act (49 Stat. 449, 29 U. S. 
C, Sec. 151, et seq) .- In its answer to the petition, 
the Board has requested that its order be enforced 
(R. I, 134-142). The jurisdiction of this Court is 
based upon Section 10 (e) and (f) of the Act and the 
Act, as amended, the unfair labor practices having 
occuiTed at the employer's plant in Berkeley, Cali- 
fornia, within this judicial circuit.^ On February 
17, 1947, pursuant to their respective requests (R. I, 
144-150, 151-155), this Court entered an order permit- 
ting the intervention in this proceeding of Interna- 
tional Longshoremen's and Warehousemen's Union, 
Warehouse Union No. 6, C. I. O. herein called the 
C. I. O., International Chemical Workers Union, A. 
F. of L., herein called the A. F. L., and named indi- 
viduals whom the Board's order requires the employer 



2 The National Labor Eelations Act, herein called the Act, was 
amended by Section 101 of Title I of the Labor Management Re- 
lations Act, 194T, effective August 22, 1947 (61 Stat. 136, 29 
U. S. C, Supp. I, Sees. 141 et seq.). Section 101 of Title I is 
herein called the Act, as amended (Sec. 17, the Act, as amended). 
Relevant portions of the Act and the Act, as amended, appear in 
the Appendix, infra., pp. 68-76. 

^ The employer, a Delaware corporation, operates numerous 
plants throughout the United States, including its plant at 
Berkeley, Cahfornia, where it manufactures and sells soap and 
glycerin. The employer's operations entail substantial purchases 
and sales in interstate commerce (R. I. 177, 5, 10). As the em- 
ployer concedes (Br., p. 23), no jurisdictional issue is presented. 



to reinstate with back pay (R. I, 143-144)/ The 
Board's decision and order (R. I, 68-85) are reported 
in 70 N. L. R. B. 1202. 

STATEMENT OF THE CASE 

I. The Board's findings of fact 

The facts in this case relate to the employer's dis- 
criminatory discharge of and refusal to reinstate 
thirty-seven named employees in violation of Section 
8 (1) and (3) of the Act. The illegality of the em- 
ployer's conduct lies in its discharge of and refusal 
to reinstate the employees pursuant to a closed-shop 
contract, when, to the employer's knowledge, the con- 
tracting union requested the discharges under the 
contract because the employees engaged in rival union 
activities during a period when it was appropriate 
for the employees to seek a change of bargaining rep- 
resentatives. The Board's decision rests upon the 
rationale expressed by it in Matter of Rutland Court 
Owners ^ which w^as approved by this Court in Local 
No. 2880 V. N. L. R. B: 

The thirty-seven named employees comi)rise three 
groups of employees who may for the sake of cou- 



sin its brief (pp. 21-22), the employer renews its objection, 
previously made in its answer to the request for intervention 
(R. I, 159-160) , to the intervention of the A. F. L. and the named 
individuals. Permissive intervention is a matter within the 
Court's sound discretion. The Board does not oppose the inter- 
vention of the A. F. L. and the named individuals and beheves 
it to be appropriate in view of the permitted and unopposed 
intervention of the C. I. O. 

5 44 N. L. R. B. 587 ; 46 N. L. R. B. 1040. 

« 158 F. 2d 365 (C. C. A. 9), cert, granted. 331 U. S. 798, cert, 
dismissed on motion of petitioner, 332 U. S. 845. 



venience be designated as (1) the five C. I. O. stew- 
ards, (2) the four Employees Welfare Association 
committeemen, and (3) the twenty-eight additional 
employees. The five stewards, as the elected repre- 
sentatives of the plant employees at the employer's 
plant in Berkeley, California, were responsible for 
the day-to-day administration of a closed-shop agree- 
ment to which the C. I. O. Avas a party, and spear- 
headed a movement to oust the C. I. O. as bargaining 
representative. The four committeemen were plant 
employees who played a prominent role in the rival 
movement, and who were the elected officers of the 
Employees AYelfare Association, an interim organiza- 
tion formed to oppose the C. I. O. The twenty-eight 
additional employees were active participants in the 
campaign to depose the C. I. O. and to establish the 
A. F. L. as bargaining representative. The Board 
determined that as a matter of law the closed-shop 
contract did not preclude the employees in question 
from engaging in rival union activity at the time they 
did so and found as ultimate facts (1) that the C. I. O. 
sought to use the closed-shop contract for the purpose 
of punishing the employees for engaging in such rival 
union activities, and (2) that, although the employer 
had knowledge that the C. I. O. had suspended the 
employees from membership because of their rival 
union activities, the employer acceded to the request 
of the C. I. O. that the employees be discharged under 
the closed-shop contract. The pertinent facts, as 



found by the Board and as shown by the evidence, 
may be summarized as follows:^ 

A. The closed-shop agreement between the employer and the C. I. O. 

On July 9, 1941, the employer and the C. I. O. entered 
into a contract covering the production and maintenance 
employees at the Berkeley plant, embracing the usual 
terms of a collective agreement, and providing that it 
was to "remain in effect unless and until changes' become 
necessary because of conditions beyond the control of 
the Company or are requested by the employees through 
their representatives" (R. I, 69, 23-25; R. Ill, 788). 
Section 3 of the agreement embodied a typical closed- 
shop provision requiring that new employees be hired 
through the offices of the C. I. O., or in the event that 
the C. I. O. was "unable to furnish competent workers" 
that new employees apply for membership in the C. I. O. 
within fifteen days of their employment, and further 
requiring as a condition of employment that em- 
ployees "be members in good standing" of the C. I. O. 
(R. I, 69, 24; R. Ill, 787-788, R. I, 223). On July 24, 
1945, a supplemental agreement was entered into 
which extended the 1941 contract by providing that 
that contract should "remain in full force and effect" 
pending the approval or disapproval by the Tenth 
Regional War Labor Board of certain changes (R. I, 
69, 25; R. Ill, 788-789, R. I, 223). 

Local 6 of the International Longshoremen's and 
Warehousemen's Union admitted to membership em- 



^ Where, in a series of references, a semicolon appears, the ref- 
erences preceding the semicolon are to the Board's findings, suc- 
ceeding references are to the supporting evidence. 



ployees of other employers (R. I, 26, n. 5; R. I, 187). 
None of its officers were employees of the Colgate- 
Palmolive-Peet Company and the contract with that 
ComiDany was administered by five plant stewards who 
were employees (R. I, 218-220, 286). In July 1945 
the five C. I. O. plant stewards were Haynes, Luch- 
singer, Marshall, Moreau and Smith (R. I, 26; R. I, 
193). 

B, The employees' dissatisfaction with the C. I. O. and the preliminary 
steps taken by them to change representatives 

Dissatisfaction with the representation accorded 
them by the C. I. O. had been brewing among the 
employees for about six months before the extension 
of the closed-shop agreement (R. I, 25; R. I, 225-226, 
209). During this period, the five plant stewards, 
elected by the employees to handle the day to day 
administration of the agreement (R. I, 218-220, 286), 
expressed their discontent with the C. I. O. officials to 
Charles Wood, the employer's Labor Relations Di- 
rector (R. Ill, 758-759). On July 20, 1945, four 
days before the execution of the extension of the 
collective agreement, Steward Marshall in a conver- 
sation with B. W. Railey, the employer's vice-presi- 
dent (R. I, 181), asked that the five stewards be 
present when the extension was signed because of 
impending labor troubles at the plant due to the 
employees' unrest (R. I, 188-189, 225-226). 

Some time in July, the five C. I. O. stewards con- 
tacted District 50 of the United Mine Workers of 
America and discussed with its representatives the 
possibility of transferring the affiliation of the Com- 



pany's employees to that organization (R. I, 25-26; 
190, 209, 237-240). On July 26, 1945, the five C. I. O. 
stewards for the purpose of organizing employee 
sentiment into effective action in opxDOsition to the 
C. I. O., arranged a dinner attended by the five 
stewards and some twenty-four additional employees 
(R. I, 26; R. I, 189-191, 208-210, 255). At this 
dinner those present decided to call an open meeting 
on July 30, 1945, for the employees at large, to dis- 
cuss a change in bargaining representatives to be 
undertaken initially by the formation of a temporary 
organization known as the Employees Welfare Asso- 
ciation (R. I, 26; R. I, 189-191, 208-210, 255). On 
Jul}^ 28, 1945, a ''notice of meeting" was posted on 
the bulletin boards throughout the plant inviting ''all 
those interested in joining Employees Welfare Asso- 
ciation" to be present at a neighboring meeting hall 
"at 4:15 p. m., Monday, July 30, 1945" (R. I, 69, 
27; R. I, 191-192, 255^256). On the same day. Super- 
intendent Altman knew of the posting and, upon 
receiving a telephone call from Labor Relations Di- 
rector Wood asking "if anything unusual had hap- 
pened," told him of the notice (R. Ill, 667-668, 
R. I, 255-256). Thereafter Steward Luchsinger and 
employee 01 sen visited Superintendent Altman at his 
oiSce, and obtained Altman 's agreement to shut down. 
the plant for two hours so that the night shift em- 
ployees could attend the meeting (R. I, 69-70, 2; 
R. I, 268-269). The Board concluded that the em- 
ployer would not have authorized so important an 
interruption in the plant's operations without ascer- 
taining the purpose of the meeting (R. I, 69-70, 77). 



8 

C. The employer, knowing the C. I. O.'s discriminatory purpose, accedes to 
the C. I. O.'s request to discharge the stewards and the committeemen 
for their leadership of the rival union activities 

Oil July 30, 1945, the same day for which the rival 
organizational meeting was scheduled, the C. I. O. 
requested and obtained the discharge of the five stew- 
ards who were leading the employees' organizational 
efforts (R. I, 70, 29; R. Ill, 806-807, R. II, 654-656). 
In the early afternoon of that day, four C. I. O. 
officials, who were not employees of the Company, 
called upon Superintendent Altman at his office (R. 
I, 27; R. Ill, 667). The C. I. O. officials handed 
Superintendent Altman a letter which requested the 
discharge of the five duly-elected plant stewards, in- 
cluding Steward Luchsinger who had obtained Alt- 
man's agreement to shut down the plant. The letter 
stated "that charges have been preferred" against 
these employees "and that they have been suspended 
from membership" in the C. I. O. "pending a trial" 
(R. I, 27-28; R. Ill, 668-669, 784-785, R. I, 259, 
256). Superintendent Altman hurried to Vice Presi- 
dent Railey's office (R. Ill, 669). The two returned 
to Altman 's office (R. II, 522, R. Ill, 669), and the 
five stewards were summoned (R. Ill, 670, R. II, 
524). Vice President Railey thereupon discharged 
the stewards, informing them that under the terms 
of the closed-shop agreement he was obliged upon 
demand to terminate their employment mitil they were 
restored to good standing by the C. I. O. (R. I, 70, 
29; R. I, 194, 256-257, 288-289). Each of the stew- 
ards was given a letter by the C. I. O. officials (R. I, 
29; R. II, 525, 670, R. I, 193). The stewards there- 



upon left Altman's office (R. I, 29; R. I, 195, R. II, 
525, R. Ill, 670-671). The letters notified the stew- 
ards that they were suspended from membership in 
the C. I. O. pending a union trial upon unspecified 
charges alleging the violation of the C. I. O. 's Declara- 
tion of Principles, Oath of Membership, and Article 
9, Section 1, of the C. I. O. Constitution and By-Laws, 
all of which are platitudinous in nature (R. I, 70; 
R. Ill, 817-848, R. I, 229, R. Ill, 853-856, R. II, 617). 
Immediately following the discharge of the five 
stewards, the C I. O. representatives distributed 
throughout the plant a bulletin reading (R. I, 70, 31- 
32; R. I, 256, R. Ill, 785, R. I, 259) : 

ATTENTION 

All Warehouse Union Members: 
An illegal meeting has been called by certain 
employees of Peet's now under suspension as 
members of this union for violation of the 
membership oath, and other illegal acts. 

WARNING 

Any member of Local 6 who attends such 
illegal meeting or participates in violations of 
our constitution, does so at the risk of losing 
membership and employment. 

General Executive Board 
Warehouse Union 
Local #6, I. L. W. U. 

That afternoon, according to Vice President Railey, 
the factory Vv^as "in a state of turmoil due to the fact 
of a lot of conversation and visiting, and union people 
going through the plants, and people couldn't get 
their work done" (R. I, 36; R. II, 528). 



10 

Of the 313 i^roduction and maintenance employees 
(R. I, 61, n. 30; R. II, 421-422), more than 200 at- 
tended the scheduled anti-C. I. O. meeting (R. I, 70, 
32; R. I, 196, 256). Two major decisions were made. 
It was unanimously resolved to break relations with 
the C. I. O. and to form an independent union, known 
as Employees Welfare Association, until affiliation 
wdth a strong international union could be accom- 
plished (R. I, 70, 32; R. I, 196, 200-201, 261, 288, R. 
Ill, 848, R. I, 259). It was also unanimously agreed 
that four employees, Thompson, Sherman, Lonnberg, 
and Olsen, designated committeemen and elected to 
act as officers of the interim organization, should seek 
the reinstatement of the discharged stewards, and 
that should they fail in their quest, all the employees 
would in protest cease w^orking (R. I, 70, 33; R. I, 
196, 199, R. Ill, 849, R. I, 259). Upon the close of 
the meeting the four committeemen dispatched the 
following telegram to Vice President Railey (R. I, 
70-71, 34; R. I, 257, R. Ill, 786-787, R. I, 259) : 

You are hereby notified of action taken by 
more than 200 employees of Colgate Palmolive 
Peet Co All being former members of 
ILWU 1-6 and being more than 50 percent of 
total employees have withdrawn and severed 
relations with ILWU-6 as collective bargain- 
ing agent. 

Employees Welfare Association 
By Negotiating Committee 

E. H. Thompson^ 

William Sherman, 

H. Lonnberg, 

L. Olson 



11 

A telegram of similar purport was sent to the C. I. O. 
(R. I, 33-34; R. I, 257, R. Ill, 786, R. I. 259). 

On the following morning, July 31, 1945, the four 
committeemen called upon Vice President Railey at 
his office, and unsuccessfully urged the reinstatement 
of the five discharged stewards (R. I, 71; R I, 257, 
R. II, 360-361). Railey persisted in his position 
that under the closed-shop agreement he had no choice 
but to comply with the C. I. O.'s demand (R. I, 34; 
R. I, 257) . He was told that he would shortly receive 
a telegram indicating the employees' wish that the 
C. I. O.'s authority to act on their behalf be termi- 
nated, and during the conversation the telegram which 
had been dispatched the previous evening was in fact 
received by Railey (R. I, 71, 35; R. II, 368-369, 
377-378). 

Meanwhile, Superintendent Altman joined the con- 
ference stating that a group of C. I. O. officials were 
presently in his office (R. I, 35; R. II, 527). They 
were invited into Railey's office (R. I, 35; R. II, 361, 
527). An acrimonious debate ensued between Com- 
mitteeman Sherman and C. I. O. President Lynden 
during which Lynden sought to justify the C. I. O. 
wage policy (R. I, 35; R. II, 545-546, 528). Vice 
President Railey in his testimony agreed that "it 
became quite apparent as this conversation took place 
that there was a schism developing in the ranks of 
the C. I. O." (R. II, 545-546). Indeed, at this very 
conference, the C. I. O. officials, in the presence of 
the employer's ranking officials, bluntly informed the 
four committeemen that suspension notices for three 

804666—48 2 



12 

of them were already in preparation (R. 1, 71; R. I, 
263-264), and requested the name of the fourth one, 
Olsen, so that they could prepare such notice for him. 
Later that morning the employer received a formal 
request from the C. I. O. notifying it of the suspen- 
sion of Thompson, Sherman, Lonnberg, and Olsen 
from membership in the C. I. O. and requesting their 
discharge (R. I, 71, 36-37; R. Ill, 673-675, 846-847). 
That same morning, C. I. O. representatives circu- 
lated another bulletin among the employees at the 
plant (R. I, 71, 37; R. I, 257). The leaflet warned 
the employees against aligning themselves with 
^'Sherman-Marshall-Lundeberg & Co.," lest they 
jeopardize 'Hheir own reputation, their union stand- 
ing, their seniority, and their jobs, " and pointedly 
referred them to "the provisions of the union con- 
tract, including the requirement that only members 
of Warehouse Union, Local #6, ILWU, in good 
standing may be employed by the company" (R. I, 
71, 37-38; R. Ill, 789, R. I, 259). Despite this warn- 
ing, a majority of the employees, u^Don learning of 
the refusal to reinstate the five stewards, at noon 
left the plant in order to hold a second anti-C. I. O. 
meeting (R. I, 71, 38; R. I, 257). Vice President 
Railey, who attended the meeting upon invitation, 
addressed the employees, stating that the reinstate- 
ment of the stewards was impossible because of the 
employer's contractual obligation under the collec- 
tive agreement (R. I, 72, 38-39; R. I, 257-258, R. II, 
529-531). Dissatisfied with Railey 's explanation, and 
having failed in their effort to secure the reinstate- 



13 

ment of the stewards, the employees in protest voted 
to reaffirm their resolution not to return to work (R. I, 
72, 38-39; R. I, 202, 258, 266, R. Ill, 850-851, R. I, 
259). The strike lasted two and one-half days, and 
most of the workers participated in it (R. I, 72, 39; 
R. Ill, 677, R. 11,533). 

Two days later, on August 2, 1945, a third anti- 

C. I. O. meeting was held, again attended by a sub- 
stantial majority of the employees, at which it was 
voted to dissolve Employees Welfare Association, to 
affiliate with International Chemical Workers Union, 
A. F. L., herein called the A. F. L., and to return to 
work the following morning pending an election 
among the employees to be requested of the National 
Labor Relations Board (R. I, 72, 40; R. I, 258, R. Ill, 
851-852, R. I, 259). The next morning, all the em- 
ployees returned to work except the five stewards, 
who had been previously discharged, and the four 
committeemen, who had been told the day before by 
Superintendent Altman that in view of their sus- 
pension it would be futile for them to report to work 
(R. I, 72, 39-40; R. I, 258, 266-268, R. II, 378, R. 
Ill, 806-807, R. II, 654-656). 

D. The employer's knowledge of events preceding its refusal to reemploy 
the stewards and the committeemen and its discharge of the twenty-eight 
additional employees at the C, I. O.'s request apprising the employer of 
the C. I. O.'s discriminatory purpose 

The initial organizational efforts of the insurgent 
employees culminating in the discharge of the stew^- 
ards and the committeemen at the C. I. O.'s request 
were followed by intensified organizational efforts to 
which the C. I. O. retaliated with further discharge- 



14 

demands under the closed-shop contract. The events 
preceding its accession to the C. I. O.'s demands fur- 
nished the employer with additional information ap- 
prising it of the C. I. O.'s discriminatory purpose. 

1. The employer's knowledge of events relating to formal Board proceedings 
dealing with the rival union activities 

Upon the completion of affiliation with the A. F. L., 
steps were undertaken by it to secure a change of rep- 
resentatives by resort to formal Board process. On 
August 3, 1945, the A. F. L. filed a petition for the 
investigation and certification of representatives. On 
August 8, 1945, the A. F. L., the C. I. O., and the 
employer met informally to discuss the petition at a 
preliminary conference at the Board's regional office 
in San Francisco. Notice of formal hearing was 
issued on August 14, 1945, was received by the em- 
ploj^er on August 17, 1945, and the hearing was held 
on August 22, 1945 (R. I, 72, 73, 41, 45; R. II, 549- 
552; R. Ill, 799-805). « 

In addition to the A. F. L.'s invocation of the 
Board's election machinery to resolve the representa- 
tion question, the A. F. L. invoked the Board's 
processes for the redress of unfair labor practices in 
order to remedy the dismissal of the stewards and 



® Pursuant to the Board's Decision and Direction of Election 
issued on September 26. 1945. an election was held on October 16, 
1945, at which the A. F. L. was defeated 181 to 126 (R. I, 75; 
E. II, 549-552, R. Ill, 799-805). Thereafter, upon objections to 
the election filed by the A. F. L., the election was set aside by the 
Board because the employer's discharge of employees at the 
C. I. O.'s request for protected union activities prevented the re- 
sult of the election from being truly representative of the em- 
ployees' untrammeled wishes (R. I. 75, 79, 83), 



15 

the committeemen. On August 13, 1945, the A. F. L. 
verified, and the next day filed, the original charge 
alleging the discriminatory dismissal of the stewards 
and the committeemen (R. I, 72; R. I, 92-93). Be- 
cause of the Board's practice promptly to inform 
persons of charges filed against them, the Board in- 
ferred that the employer was apprised of this charge 
by August 17, 1945 (R. I, 77-78). The employer 
admittedly knew of it on August 22, 1945 (R. I, 107). 

2. The employer's knowledge of the C. I. O.'s retaliatory campaign 

Upon the employer's notification on August 8, 1945, 
of the filing by the A. F. L. of a petition for certifica- 
tion of representatives, Vice President Railey agreed 
that it was readily apparent that a campaign for the 
employees' favor was being conducted by the A. F. L. 
and the C. I. O. (R. I, 72; R. II, 547). Labor Rela- 
tions Director Wood in his daily tours of the plant 
was handed union literature which was being circu- 
lated in profusion throughout the plant, and he ob- 
served the A. F. L. buttons which the employees were 
wearing on their work clothes (R. Ill, 759-761). 
This campaign was open, widespread, and intense 
(R. I, 72, 41; R. I, 299-301, 305-314, 330-332, R. II, 
344, 387-388, 391-394, 411-414, 430-431, 433-436, 438- 
439, 475-478, 481-488, 516, 564, 566, 580-581, 583-584, 
592-594, 598, 607, 608-612, 631-632, 642, R. Ill, 785, 
789-790, R. I. 259, 794-798, 808-847). The C. I. O., in 
the conduct of its campaign, both orally and through 
leaflets, made clear that the price of adherence to 
the A. F. L. was discharge mider the closed-shop 
contract (R. I, 72, 77, 43-44; R. I, 299-300, 305-314, 



16 

R. II, 438-439, 475, 481^88, 516, 564, 580-581, 592- 
594, 598, 608-609, 631-632, 642, R. Ill, 785, 789-790, 
R. I, 259, R. Ill, 794-798; R. II, 476-477). Aware 
of the C. I. O.'s retaliatory campaign. Labor Rela- 
tions Director Wood conceded that he knew that the 
C. I. O.'s subsequent discharge demands were moti- 
vated in part at least by the '^ union activities" of 
the A. F. L. adlierents (R. I, 78, 49; R. Ill, 737).^ 
Illustrative of the C. I. O.'s campaign was its leaflet, 
widely distributed throughout the plant and posted 
on a plant bulletin board on August 22, 1945, the day 
of the hearing on the A. F. L.'s election petition, 
warning the employees of discharge for pro-A. F. L. 
or anti-C. I. O. activity (R. I, 73; R. Ill, 796, 798, 
R. II, 476-478). The leaflet read in part: 

•ff w W Tv w 

6. Onl}^ members of the Warehouse Union, 
Local 6, work at Colgate Palmolive Peet Com- 
pany. If anyone says different — let him test 
it. 



® It is unlikely that any notable aspect of employee thinking 
escapes managerial attention. In the discharge of their man- 
agerial duties, Superintendent Altman and Labor Relations Di- 
rector Wood, top-ranking officials at the employer's Berkeley 
plant (R. I, 180-182). made daily tours of the plant (R. Ill, 
696-G9T. 757-758). One of the bulletin boards upon which em- 
ployees post notices is in the immediate vicinity of the offices of 
the managerial staff (R. I. 191-192). Superintendent Altman 
passes by this bulletin board several times each day. and generally 
reads any new notices placed on the board (R. III. 686-687). 
In making his daily rounds Labor Relations Director Wood oc- 
casionally talks with the employees (R. Ill, 758), observes the 
matter placed on the various bulletin boards (R. Ill, 759), and 
during the course of tlie union electioneering received union litera- 
ture (R. Ill, 759-760). Lesser supervisor^' officials, being- in more 
immediate contact with tlie eniployees, necessaril}' have an even 
more intimate knowledge of employee opinion. 



17 

7. Any Peet's employee reported as trying to 

get people to bolt the C. I. O. and join the 

A. F. L. or wearing an A. F. L. ])utton, will 

be taken off the job. 

* * * * * 

10. As a result of the investigation last week, 
we have found it necessary to consider the re- 
moval of several more of the ringleaders who 
have violated all of our rules. 

* * -x- * * 

We suggest : If you value your future at Col- 
gate Palmolive Peet; if you enjoy your present 
job; if you w^ould like to retain your seniority 
and pension, and receive the retroactive pay 
due you, we advise you to think carefully about 
everything told you — then tell the A. F. L. dis- 
rupters that you are not interested in their 
form of phoney unionism. 

Warehouse Union, Local 6, ILWU 

3. The employer's knowledge of threats to A. F. L. adherents by the C. I. O. 

On the afternoon of August 11, 1945, a C. I. O. 
official remonstrated with employee Albert Zulaica, 
subsequently discharged on September 1 under the 
closed-shop contract (R. I, 74; R. Ill, 792, 806; R. II, 
654-656, infra, pp. 21-23), for his active advocacy of 
the A. F. L., warning him that such conduct by the em- 
ployees would lead to their dismissal (R. I, 41; R. I, 
305-310). In reply to Zulaica 's assertion that '4f 
you start doing that you will have to throw the ma- 
jority out because most of them are wearing an 
A. F. L. button," the C. I. O. official stated, ''we 
don't have to do that. * * * We can pick some 
of you out and claim that you were leaders, and that 



18 

will scare the rest of them" (R. I, 42; R. I, 309-310). 
On the following Monday morning, August 13, 1945, 
Zulaica reported the gist of this conversation to his 
foreman asking him to talk to the superintendent or 
assistant superintendent about it. That afternoon 
Assistant Superintendent Stanberry told Zulaica "I 
think all your trouble is because you are wearing those 
buttons. If you take them off you won't have that 
trouble, see. You can keep that in your heart and 
take your buttons off. They could never take that 
out of your heart if you wanted to go into another 
union" (R. I, 73; R. I, 310-312). 

On August 30, 1945, a C. I. O. official visited Labor 
Relations Director Wood at his office and demanded 
the discharge of an estimated seventy employees, 
about one-fifth of the working force, upon the as- 
serted ground that they were not members of the 
C. I. O. in good standing (R. I, 73-74; R. Ill, 728- 
731). Wood told him, ''Go to hell * * * j 
[am] * * * not going to act on any such order 
* * * This thing has gone too far. You are get- 
ting too many people involved here. Why, the first 
thing you know, if this keeps on, we will be shut 
down * * * I ^vant to talk to [C. I. O. Vice 
President] Heide about this thing before we get into 
this thing any deeper" (R. I, 74; R. Ill, 730). After 
a discussion with Heide, this particular request was 
evidently withdrawn (R. I, 74; R. Ill, 730). 

On August 31, 1945, a C. I. O. official approached 
employee Kay Norris in the plant (R. I, 74; R. II, 
483-484). On the previous day, this C. I. O. official 



19 

on plant premises had ^Ya^ned Norris to desist from 
campaigning on behalf of the A. F. L. (R. II, 480- 
482. Referring to this earlier conversation, the 
C. I. O. official asked Norris whether she "had 
changed * * * [her] mind," that he had given 
her "time to go home and think it over," and was 
she ready to "drop A. F. of L. and stick by C. I. O." 
(R. I, 74; R. II, 484). Upon being told that she had 
not changed her mind, he said, "I held out a letter 
for you until today * * * You are fired. You 
might as well get off the floor right now" (R. I, 74; 
R. II, 484). Norris immediately reported to As- 
sistant Superintendent Stanberry that "that miion 
fellow kicked me off the floor. He told me I was 
fired" (R. I, 74; R. II, 484, 485). Stanberry re- 
plied, "He can't do that" (R. II, 484). She then 
attempted to report the incident to Superintendent 
Altman, but on finding him out of his of&ce reported 
it to another person in the office who told her to ignore 
the statement and return to work (R. I, 74; R. II, 
485). As hereinafter more fully related (pp. 21-23, 
infra), on the next day, September 1, Norris and 
seventeen others were discharged under the closed- 
shop contract (R. I, 74; R. Ill, 792, 806-807, R. II, 
654-656). 

E. The employer, knowing the C. I. O.'s discriminatory purpose, accedes to 
the C. I. O.'s request to discharge the twenty-eight additional employees 
for their rival union activities, and refuses to reemploy the stewards and 
the committeemen 

In addition to the discharge of the five stewards 
and the four committeemen, whom the employer sub- 
sequently refused to reemploy upon their request 



20 

{infra, p. 20), the C. I. O. secured the dismissal of 
twenty-eight additional employees pursuant to the 
closed-shop agreement (R. I, 74; R. Ill, 806-807, 
R. II, 654-656). All of the discharged employees had 
joined the A. F. L., worn A. F. L. buttons prominently 
in the plant, taken an active role in A. F, L. organiza- 
tional activities, and participated in the two and a 
half days' work stoppage (R. II, 656-657, 506-507). 
All of them, with two exceptions,'" attended the meet- 
ings of July 30, 31, and August 2, 1945, and concurred 
in the actions taken at these meetings (R. II, 506). 
Their discharge, and the refusal to reemploy the stew- 
ards and the committeemen, occurred under the fol- 
lowing circumstances : 

1. The refusal to reemploy the stewards and the committeemen on 

August 17 

On August 17, 1945, the five stewards and the four 
committeemen reported to work, but their request for 
reinstatement w^as denied (R. I, 73; R. I, 267-268, 
289-290, R. II, 341-342, 380-381, 427, R. Ill, 679-680, 
699-700). Labor Relations Director Wood stated that 
*'I fell back on our legal advice" and represented to 
the discharged employees that under the closed-shop 
contract the employer was under an absolute duty to 
abide by the C. I. O.'s wishes (R. I, 73; R. IH, 
727-728). They were told by Wood that ''You will 
have to remain out until the issue has been determined 
between you and the C. I. O." (R. I, 73; R. Ill, 728). 



^° The complaint was dismissed insofar as it related to the third 
exception, Rose Gilbert (Schneider) (R. I, 74, 21). 



21 

2, The discharge of six employees on August 31 

On the morning of August 31, 1945, the C. I. O. 
requested and obtamed the discharge of six employees 
pursuant to the closed-shop agreement (R. I, 46; 
R. Ill, 806-807, R. II, 654-656). The discharges 
were effected in conjunction with a wholesale inspec- 
tion of the employees' union dues books." This in- 
spection was conducted by C. I. O. officials in the 
vicinity of the entrance to the plant during the time 
when the employees were reporting to work on the 
morning shift (R. I, 46; R. Ill, 681-682, 709-716). 
Superintendent Altman and Assistant Superintendent 
Carter were j)i'esent to observe the event (R. Ill, 
681-682, 710-711). Assistant Superintendent Carter 
saw the C. I. O. officials hand envelopes to some of the 
employees, and heard them tell these employees that 
they could not report to work (R. Ill, 715-716). One 
employee who received a suspension notice was told, 
''Here is a letter for you, and you are fired. You can- 
not work here anymore. * * * You go to your 
A. F. of L. friends to help you now" (R. II, 516). 
Another suspended employee w^ho received a notice 
was told, ''take it back to your union, see if they can 
put you back to work, you are so crazy about them," 
(R. II, 564). 

3. The discharge of eighteen employees on September 1 

On September 1, 1945, the C. I. O. requested and 
obtained the discharge of eighteen more employees 



" It was stipulated at the hearing that the C. I. O. did not re- 
quest the discharge of any of the stewards, the committeemen, or 
the twenty-eight additional employees because of delinquency in 
the payment of union dues to the C. I. O. (R. II, 518). 



22 

pursuant to the closed-shop contract (R. I, 74, 46-47; 
R. Ill, 806-807, R. II, 654-656). On that day, the 
C. I. O. delivered a letter to the emj^loyer stating 
that these eighteen employees had been suspended 
discharge (R. I, 46-47; R. Ill, 792, R. I, 315, 684 R. 
from membership in the C. I. O. and requesting their 
II, 534. After a conference among the employer's offi- 
cials, it was decided to call the designated employees 
into Vice President Railey's office to inform them that 
their employment was terminated (R. I, 47; R. Ill, 
732-734, R. I, 313-316, R. II, 534-535, 567-568, 572- 
573, 620-621). The eighteen were called in and Labor 
Relations Director Wood reiterated to the assembled 
employees the management 's position that it was under 
an absolute duty under its closed-shop contract to 
discharge them upon demand of the C. I. O. (R. I, 47; 
R. II, 735). A turbulent session ensued, during which 
employee Norris, whose discharge was requested, ex- 
pressed her conviction that the employees wTre dis- 
missed because "we wore A. F. of L. buttons and we 
distributed literature," to which Wood replied, ''I 
guess it is so, that could be it" (R. II, 488). She 
further testified that Wood stated, "We talked too 
much, that if we had kept our mouths shut we wouldn't 
have got into this mess" (R. II, 488-489). Another 
em]:>loyee testified that Wood said, "If you had kept 
this quiet about the AFL this wouldn't have hap- 
pened to you" (R. I, 316). A third employee testi- 
fied that Wood said, "If we [the discharged em- 
ployees] didn't wear the AFL buttons and didn't talk 
too much, wh}-, we wouldn't get in this troul)le in the 
first place") R. II, 577). One of the assembled em- 



23 

ployees complained, "I don't see why we can't change 
from from one union to another" (R. II, 492), 

4. The discharge of four employees on September 5, 7, and 11 

Several days later, four additional employees were 
dismissed pursuant to the closed-shop contract: em- 
ployee Franklin Richmond was discharged on Septem- 
])er 5, employees Manuel Alegre and John Perucca on 
September 7, and employee Edward Navarro on Sep- 
tember 11 (R. I, 50 and n. 20; R. Ill, 806-807, R. II, 
654-656). 

About September 1, 1945, employee Fraklin Rich- 
mond, while wearing an A. F. L. button on his work 
clothes, was approached in the plant by a C. I. O. 
official who demanded to see his union book (R. I, 51 ; 
R. II, 630-631). Richmond walked over to his super- 
visor and asked whether 'Hhis goon had any right to 
come in here and demand to see my book merely be- 
cause I have got a button on. ' ' His supervisor replied, 
''Well, he can ask to see your book, is all." Upon 
receiving the imion book, the C. I. O. official noted 
its number. Richmond stated, "Now I suppose I will 
get one of your letters r' He was told, "You will!" 
And he did. (R. I, 51-52; R. II, 631-632.) Several 
days thereafter Superintendent Altman informed 
Richmond that he was required to discharge him be- 
cause he had been named in a C. I. O. notice of 
suspension (R. II, 632-635). Richmond told Altman 
"that for every one of us that were laid off like that, 
for wearing those buttons, he was going to have some 
kind of charge placed against him" (R. II, 634). 



24 

Edward Navarro, together with three or four other 
machinists employed at the plant, were members of a 
C. I. O. union, the East Bay Union of Machinists, 
Local 1304, and because of their membership in the 
Machinist's Union all of them were permitted to 
work at the plant without obtaining membership in 
the C. I. O. Icoal at the plant (R. I, 52; R. II, 641- 
642, 645-646). About September 4, 1945, Labor Re- 
lations Director Wood told NaA^arro that it would be 
necessary for him to transfer to the C. I. O. local 
at the plant (R. II, 642). He applied for a transfer 
but the C. I. O. local in the plant refused to grant 
it because he 'Svas wearing an A. F. of L. button in 
the plant" (R. II, 642). The employer thereupon 
discharged him (R. I, 50 and n. 20; R. Ill, 806-807). 
The other machinists, however, were permitted to 
continue to work without obtaining membership in 
the C. I. O. local at the plant (R. II, 646).^^ 

F. The C. I. O.'s subsequent trial of the discharged employees 

Subsequent to their discharge, the five stewards, 
the four committeemen, and the twenty-eight addi- 
tional emj^loyees were tried before C. I. O. tribunals. 
The transcripts of the proceedings before the C. I. O. 
tribunals and the decisions of the C. I. O. trial com- 
mittees were received in evidence, not to establish 
the truth of the matter asserted therein for which 
they were incompetent hearsay, but for the limited 



^^ There is no dijfference in principle between the refusal to qual- 
ify an employee for membership in a miion because of his pro- 
tected activities on behalf of a rival union and the withdrawal 
from an employee of his good standing in a union because of his 
protected activities on behalf of a rival union. 



25 

purpose of establishing that proceedings were held 
and that decisions were rendered (R. Ill, 769-771, 
778-779). On October 3, 1945, the C. I. O. tried the 
five stewards and the four committeemen in absentia, 
and on October 10, 19-15, a decision of the trial com- 
mittee was issued recommending their expulsion from 
the C. I. O. (R. I, 52-53; R. Ill, 856-866, 877-922). 
About mid-November 1945, the C. I. O. informed 
Labor Relations Director Wood of this action (R. 54; 
R. Ill, 741, 762). On December 17, 1945, the twenty- 
eight additional employees, Avith the exception of 
Edward Navarro, were tried by a C. I. O. tribunal 
(R. I, 52; R. Ill, 923-987). Some of these employees 
protested what they believed to be the irregularity of 
the proceeding, and forthwith withdrew from further 
participation in it (R. Ill, 924, 930-935). The re- 
maining employees participated in the proceeding, 
and during its course entered a so-called "guilty" 
plea admitting that they engaged in the tw^o and a 
half days' work stoppage (R. II, 506-507, R. Ill, 
969-976). On December 24, 1945, a decision of the 
trial committee was issued recommending that the 
employees who withdrew from the proceeding be ex- 
pelled and that the employees who pleaded "guilty" 
be placed on probationary status (R. I, 53-54; R. Ill, 
867-876). About January 1, 1946, the C. I. O. in- 
formed Labor Relations Director Wood of this action 
(R. I, 54 ;R. Ill, 742, 762)." 

" Notwithstanding the unparticularized stress which the em- 
ployer places on these trials (Emp. Br., pp. 5, 15-16, 37, 53-55), 
it is clear that, since the trials occurred subsequent to the dis- 
charge of the employees, they have no relevance to the question of 
the employers knowledge, at the time of the discharge, of the 



26 
II. The Board's conclusions of law 

On the basis of the foregoing facts, the Board de- 
termined that "It is clear from the record, and we 
find, that the [employer] kneiu of the C I. O.'s reason 
for demanding the discharges" (R. I, 76), namely, 
that the C. I. O. was "acting in reprisal against the 
complainants because of their anti-C. I. O. activity" 
(R. I, 79). The employer "knew, when it discharged 
and refused to reinstate the complainants, that the 
C. I. O. demanded such action because of "the com- 
plainants' exercise of the right guaranteed employees 
in the Act to bargain collectively through representa- 
tives 'of their own choosing' " (R. I, 16). The Board 
concluded that the employer "thereby violated Sec- 
tion 8 (1) and (3) of the Act, for the reasons stated 
in the Rutland Court case" (R. I, 76). 

In Matter of Rutland Court Owners,^* as in Matter 
of Portland Luml)er Mills,^'' which the Board also 
cites in support of its conclusion (R. I, 76, n. 6), in 
which the Board's order was enforced by this Court, 
the Board enunciated the principle that an employer 



C. I. O.'s discriminatory purpose in requesting the discharges pur- 
suant to the closed-shop agreement. The employer also stresses 
the "guilty" plea of some of the employees (Emp. Br., pp. 37, 54- 
55), but an examination of the trial transcript (R. Ill, 969-976) 
indicates that the employees did no more than admit that they, 
engaged in the work stoppage, a fact which was never denied and 
which was true of most of the ;^13 employees. Their plea was in 
the nature of a demurrer to the complaint ; they were not acting as 
penitents throwing themselves on the mercy of the tribunal. 

" 44 N. L. E. B. 587 : 46 N. L. R. B. 1040. 

^^ 64 N. L. R. B. 159, enforced, sub nom.. Local No. 2880 v. N. L. 
R. B., 158 F. 2d 365 (C. C. A. 9), cert, granted, 331 U. S. 798, dis- 
missed on motion of petitioner, 332 U. S. 845. 



27 

camiot properly discharge employees pursuant to the 
closed-shop provisions of a contract when, to his 
knowledge, the discharge is requested by the union 
which is a party to the contract for the i)urpose of 
eliminating employees who have sought to change 
bargaining representatives at a period when it is ap- 
propriate for the employees to seek a redetermination 
of representatives. By this principle the Board has 
sought to prevent a closed-shop agreement from being 
converted into a device to accomplish the perennial 
suppression of the employees' will in the matter of 
choice of representatives. In the Rutland Court 
case the Board, by adopting this principle, attempted 
to work out an accommodation between the sometimes 
conflicting interest of the free choice of representa- 
tives by employees, on the one hand, and of union 
security and stability of the bargaining relationship, 
on the other. 

III. The Board's order 

The Board's order requires the employer to cease 
and desist from encouraging or discouraging member- 
ship in the A. F. of L., the C. I. O., or any other labor 
organization of its employees by discharging or re- 
fusing to reinstate any of its employees, or by dis- 
criminating in any other manner in regard to their 
hire, tenure, or other terms of employment (R. I, 80). 
Affirmatively, the Board's order requires the em- 
ployer to offer reinstatement with back pay to the 



8()4G6G— 48- 



28 

thirty-seven employees, and to post an appropriate 
notice (R. I, 81-82.)" 

SUMMARY OF ARGUMENT 

I. The proviso to Section 8 (3) of the National 
Labor Relations Act does not require or permit an 
employer to comply with the closed-shop provisions of 
a contract when, to his knowledge, discharges pursuant 
to the contract are sought by the contracting union as 
a penalty for rival union activities carried on during 
a period when it is appropriate for the employees to 
seek a redetermination of representatives. This view 
represents the most reasonable reconciliation between 
the general guarantees of the Act, which permit em- 
ployees to choose and change representatives, and the 
limitations imposed by the proviso, which permit dis- 
cipline of employees in the interest of union security 
and stability of the bargaining relationship. 

An employer's answerability for his wrongdoing in 
discriminating against employees by knowingly dis- 
charging them for rival union activity carried on at 
an appropriate period is not affected by the Board's 
lack of power to reach the contracting union's inde- 
pendent wrongdoing in requesting the discharges for 
such protected activity by employees. The Act, prior 
to its amendment, contemplated affording protection 
to employees engaged in rival union activity, and the 
amendments to the Act, in retaining employer re- 

^*^ That part of the Board's order (R. I, 83) which sets aside the 
election is not before the Court for review at the present time. 
N. L. R. B. V. Folk Corporation, 308 U. S. 453. Contrary to inti- 
mations in the employer's brief (pp. 8, 11, 24), the Board's order 
does not set aside the closed-shop agreement. 



29 

sponsibility for wrongful discharges pursuant to a 
union security agreement, confirm the propriety of the 
Board's construction. 

II. There is substantial evidence to support the 
Board's fuiding that the employer knew of the 
C. I. O.'s discriminatory purpose when, acceding to 
the C. I. O.'s request, it discharged the stewards and 
the committeemen, refused to reemploy them upon 
request, and discharged the twenty-eight additional 
employees. The employer's disregard of its knowl- 
edge of the C. I. O.'s discriminatory purpose, in reli- 
ance upon a mistaken view of the law, does not excul- 
pate it from the consequences of its unlawful con- 
duct. Nor, assuming the truth of the assertion, is it 
material that, to the employer's knowledge, there were 
other grounds for the contracting union's discharge 
request in addition to its discriminatory reliance upon 
rival union activities. 

The employer's knowledge of the contracting 
union's discriminatory purpose may be inferred from 
the evidence of the information as to which the em- 
ployer was apprised in the same manner in which 
notice in other fields is traditionally proved. In re- 
fusing to credit the employer's denial of knowledge, 
because of circumstances which make the truth of 
the disclaimer improbable, the Board does not place 
the employer in the role of a judge of the union's 
reasons for the discharge but merely exercises the 
traditional f miction of any trier of fact. Nor does 
the Board place upon the employer an implicit bur- 
den to seek out information as to the contracting 
union's purpose; it holds only that the emploj^er may 



30 

not act in disregard of the plain import of facts of 
which it is apprised. 

III. The rival union activities of the A. F. L. ad- 
herents occurred during a period when it was appro- 
priate for the employees to seek a redetermination of 
representatives. The closed-shop agreement for an 
indefinite term between the C. I. O. and the employer, 
in existence for more than four years, no longer pro- 
vided the C. I. O. immunity from challenge, because 
at that stage, under the Board's well-settled rules, 
the need of affording the employees an opportunity to 
oust or reaffirm their bargaining representative pre- 
vailed over the need for affording a period of quiet 
enjoyment to an agreement arrived at through collec- 
tive bargaining. 

IV. California local law substantially subscribes to 
the interpretation of the obligations of a closed-shop 
agreement as not requiring or permitting the dis- 
criminatory discharge of employees for rival union 
activity carried on at an appropriate time. More- 
over, assuming California local law commands con- 
duct inconsistent with that required by the National 
Labor Relations Act, local law must yield to para- 
mount federal law where the two cannot stand 
together. 

V. In affording protection to employees wrongfully 
discharged pursuant to a closed-shop contract, the 
Act does not offend the due-process requirements of 
the Fifth Amendment. In the exercise of the com- 
merce power, Congress may impose upon contractual 
relationships reasonable regulations calculated to pro- 
tect commerce against threatened industrial strife. 



31 

ARGUMENT 
I 

The closed-shop proviso to Section 8 (3) of the National Labor 
Relations Act does not protect the employer in discharges 
of employees for rival union activities occurring at a time 
when employees may appropriately change bargaining rep- 
resentatives 

The disposition of tliis case is governed by the 
principle enunciated by the Board in Matter of Rut- 
land Court Otvners, 44 N. L. R. B. 587; 46 N. L. R. B. 
1040. By that principle, familiarly known as the 
Rutland Court doctrine, the Board adopts the view 
that the proviso to Section 8 (3) of the Act does 
not require or permit an employer to comply with 
the closed-shop provisions of a contract when, to his 
knowledge, enforcement of the contract is being sought 
as a penalty for riA^al union activities, where such 
rival union activities are carried on during a period 
w^hen it is appropriate for the employees to seek a 
redetermination of representatives. This view repre- 
sents the Board's considered judgment as to how the 
conflict between the general guarantees of the Act, 
which permit employees to choose and change repre- 
sentatives, and the limitations imposed by the proviso, 
which permits discipline of employees in the interest 
of union security and stability of the bargaining re- 
lationship, may most reasonably be reconciled so 
that the legitimate scope of each may be preserved 
without nullifying the other. The resolution of the 
antinomy in these terms requires rejection of the 
absolute view that any discharge pursuant to a closed- 
shop contract is justified without question. 



32 

The Board's refusal to accept an interpretation of 
the proviso which would convert it into an instru- 
ment for suppressing the democratic aspirations for 
orderly change has received unqualified approval by 
this Court in Local No. 2880 v. N. L. R. B., 158 F. 
2d 365 (C. C. A. 9)/^ The Circuit Court of Appeals 
for the Second Circuit has likewise expressed its 
unqualified approval of the Board's Rutland Court 
doctrine in N. L. R. B. v. American White Cross 
Lahoratories, 160 F. 2d 75 (C. C. A. 2)/^ The Board's 
rationale is required by the salutary principle enun- 
ciated by the Supreme Court in Wallace Corporation 
V. .V. L. R. B., 323 U. S. 248. It has received explicit 
confirmation by Congress in the amendments recently 
made in the National Labor Relations Act (Sections 
8 (a) (3) (A) and (B), 8 (b) (2), and 10 (c) of the 
Act, as amended)/^ As this Court declared in the 
Local 2880 case, supra, 158 F. 2d, at 368, 369 : 

The Board's construction of the proviso of 
Subsection 8 (3) with relation to Section 7 con- 

^" Certiorari granted, 331 U. S. 798, certiorari dismissed on 
motion of petitioner, 332 U. S. 845. The case is noted in 56 Yale 
L. J. 10-18 (1947) ; 15 U. of Chi. L. Pvev. 232 (1947) ; and 33 Va. 
L. Eev. 521 (1947). 

^^ See also, CoJonie Fibre Co7n'pany. Inc., v. N. L. R. ^., 103 F. 
2d 65 (C. C. A. 2) . Contra, LewiH Meier & Co. v. .V. L. R. B., 21 
L. K. R. M. 2093 (C. C. A. 7, November 3, 1947), ''on the author- 
ity of Alnmiiiuyn Company of Ametv'ca v. National Labor Rela- 
tion.^ Board (1946) , 159 F. 2d 523 [C. C. A. 7]." 

^^ Inasmuch as Section 102 of the Labor Management Relations 
Act. jn-ecludes a retroactive application of its terms to make un- 
lawful that which w^as, prior to its enactment, not an unfair labor 
practice, it is necessary to determine whether the conduct herein 
comphiined of was violative of the National Labor Rehitions Act 
prior to its amendment. 



33 

ferring on * * * all employees the right 
to "bargain collectively through representatives 
of their own choosing," as not warranting a 
discharge for activities at an election for such 
choice is so obviously rational that we well could 
be required to accept it under the rule that 
upon "questions of law the experienced judg- 
ment of the Board is entitled to great weight." 
Medo Corporation v. National Labor Relations 
Board, 321 U. S. 678, 681. * * * we are of 
the opinion that it is the only interpretation to 
be given the proviso * * * The Board's 
interpretation, in addition to confirming the 
democratic process in bargaining agency elec- 
tions, prevents the use of the proviso for the 
perpetuation of a particular union's control of 
the employees once it enters into a closed-shop 
contract with their employer. 

A. The employer's challenge to the soundness of this Court's approval of 
the Rutland Court doctrine in the Local 2880 case 

The employer devotes much of its argument to an 
effort to bring into question the soundness of this 
Court's approval in the Local 2880 case (158 F. 2d 
365) of the rationale expressed by the Board in 
Matter of Rutland Court Owners, 4:4: N. L. R. B. 
587 ; 46 N. L. R. B. 1040. . In seeking to cast doubt 
upon the legal soundness of the Board's conclusion 
that the employer committed an mifair labor practice 
by discharging the A. F. L. adherents with knowledge 
that their suspension from membership in the C. I. O. 
was occasioned by their activities on behalf of a rival 
union during a period when it was appropriate to 
seek a redetermination of representatives, the em- 



34 

ployer repeats in substance the same contentions fully 
and unsuccessfully urged by the employer and the 
contracting union in the Local 2880 case. We do not 
propose to burden the Court with reargument of the 
propriety of the Board's conclusion which this Court 
upon full consideration described as 'Hhe only inter- 
pretation to be given the proviso of Subsection 8 (3) 
for closed shop contracts" {Local 2880 case, 158 F. 
2d, at 368). A few observations will suffice to dis- 
close the fallacy upon which the employer's argument 
is based. 

The employer's argument is predicated upon the 
mistaken premise that because the Board was un- 
able, prior to the amendments to the Act, to reach 
the contracting union's discriminatory conduct in re- 
questing the discharge of rival union adherents under 
a closed-shop contract, the Board was equally power- 
less to reach the employer's discriminatory conduct in 
acceding to the contracting union's discharge demands 
notwithstanding the employer's knowledge of the 
union's discriminatory purpose. The contention fails 
to perceive and distinguish between the contracting 
union's wrongful act in requesting the discharge of 
rival union adherents, on the one hand, and the em- 
ployer's ow^n wrongful act in acceding to the dis- 
charge demands, on the other. The controlling factor 
is the employer's answerability for its own miscon- 
duct in discriminating against employees. The em- 
ployer's responsibility is not minimized or extin- 



35 

guished because of lack of power to reach the 
contracting union's independent wrongdoing. 

Nor is it sound to contend, as the employer does 
(Emp. Br., pp. 66-67), that the Act prior to its 
amendment did not contemplate the problems arising 
from rival unionism because the division in the Amer- 
ican labor movement between the American Federa- 
tion of Labor and the Congress of Industrial Organ- 
izations did not occur until after the adoption of the 
Act. The Supreme Court in A. F. L. v. N. L. R. B., 
308 U. S. 401, 411, n. 4, exposed the fallacy of this 
reasoning when it observed: ^'Congress apparently 
recognized that representation proceedings tmder § 9 
(c) might involve rival unions. The House Com- 
mittee said: 'Section 9 (c) makes provision for elec- 
tions to be conducted by the Board or its agents or 
agencies to ascertain the representatives of employees. 
The question will ordinarily arise as between two or 
more hona fide organizations competing to represent 
the employees, but the authority granted here is broad 
enough to take in the not infrequent case when only 
one such organized group is pressing for recognition, 
and its claim of representation is challenged.' H. 
Rep. No. 1147, Committee on Labor, 74th Cong., 1st 
Sess., p. 22." [Emphasis supplied.] 

The propriety of the Board's conclusion is con- 
firmed by the retention of employer answerability for 
the wrongful discharge of employees under a union 
security agreement in Section 8 (a) (3) (A) and 
(B) of the Act, as amended. Indeed, Section 8 (a) 
(3) (C) of the final version of the Senate bill which 



36 

became the Act specifically provided that: ''* * * 
no employer shall justify any discrimination against 
an emploj^ee for nonmembership in a labor organi- 
zation * * * (c) if he has reasonable grounds 
for believing that membership was denied or termi- 
nated because of activity designed to secure a deter- 
mination pursuant to section 9 (c) (1) (A), at 
a time when a question concerning representation may 
appropriately be raised.""" Because Section 8 (a) 
(3) (A) and (B) as finally adopted authorized an 
employer to discharge employees mider a union se- 
curity agreement only (1) for failure to acquire 
union membership open to employees upon nondis- 
criminatory terms and (2) for nonpayment of union 
dues and initiation fees, it was unnecessary to retain 
the Senate bill's specific codification of the interpre- 
tation of the proviso to Section 8 (3) of the Act 
which this Court approved in the Local 2880 case.^^ 
The significant fact is that employer responsibility 
for w^rongful discharges under a union security agree- 
ment was never questioned at any time by Congress. 

B. The employer's contention that it is placed in the role of a judge of the 

union's activities 

The employer contends that the Board's decision 
places the employer in the role of a judge (Emp. Br., 
pp. 10-11, 17-19, 54, 99, 118-120). This same at- 

-° 1 Legislative History of the Labor Management Relations 
Act, 1947 (Gov't Print. Off., 1948), p. 238. For legislative com- 
ment see S. Rep. No. 105, 80th Cong., 1st Sess., pp. 21-22; 93 
Cong. Record 1825. 

21 Local No. 2S80 v. ;\^. L. R. B., 158 F. 2d 365, 369 (C. C. A. 9) , 
certiorari granted. 331 U. S. 798, dismissed on motion of peti- 
tioner, 332 U. S. 845. 



37 

tempt to substitute metaphor for analysis was rejected 
by this Court in the Local 2880 case when Local 2880 
in opposing the Board's position urged that the em- 
ployer was required to "exercise a quasi-judicial 
process. ' ' " The contention evidently stems from 
the employer's mismiderstanding of the effect of the 
Board's finding of knowledge. Upon the basis of evi- 
dence adduced at the hearing, the Board found, despite 
the employer's denial, that it knew of the C. I. O.'s 
discriminatory purpose. In so finding, the Board no 
more makes a judge of the employer than does a jury 
make a judge of a holder of a negotiable instrument 
when the jury returns a special verdict that the 
holder knetv, at the time he received the instrument, 
despite his denial, that there was an infirmity in it.'^ 
"Notice is a fact, the existence of which is to be estab- 
lished by evidence in the same manner as the existence 
of any other fact is established ; and actual notice em- 
braces all degrees and grades of evidence, from the 
most direct and i^ositive proof to the slightest circum- 
stances from which a jury would be warranted in in- 
ferring notice."^* As this Court has explained in 
an analogous situation, denial of knowledge, like the 
denial of any operative fact, simply renders its proof 

22Keply Brief of Local 2880, p. 2: Main Brief of Local 2880, 
p. 57. 

-3 See 4 Williston, Contracts, § 1157 (Rev. Ed. 1936). 

^* In re Leterman Becker (£' Co., Inc., 260 Fed. 513. 547 
(C. C. A. 2), cert, denied, suh nom, Coleman <& Co. v. Toicas Co., 
250 U. S. 668. Substantial evidence is that quantum of proof 
which is "enough to justify, if the trial were to a jury, a refusal 
to direct a verdict when the conclusion sought to be drawn from 
it is one of fact for the jury." X. L. R. B. v. Colwiibian Enamel- 
ing and Stamping Co., Inc., 306 U. S. 292, 300. 



38 

difficult "because in the teeth of a denial the proof 
of motive must depend upon acts and circmnstances 
which can never be conclusive and when motive is 
attributed to an artificial person it involves probing 
the intent of all the officers concerned.'"' Where, 
as here, knowledge is a prerequisite for charging a 
person with liability for conduct, the Board's refusal 
to credit the denial of knowledge, because of circum- 
stances which make the truth of the disclaimer im- 
probable, does not transform the unbelieved witness 
into a judge. It represents rather an miimpeachable 
exercise of a traditional function of any trier of fact. 
Nor does the Board's decision, as the employer ap- 
pears correlatively to contend, place upon the em- 
ployer an implicit burden to seek out information. 
An employer is not required before complying with 
a discharge demand under a closed-shop agreement to 
conduct an investigation, to delve into the union's 
books and policies, or to police the imion's conduct 
of its internal affairs."'' But the disregard of the plain 
import of the facts of which the employer is apprised, 
or as the Board put it, the failure to make a ''bona 
fide effort to evaluate all the evidence before it" (R. 
I, 79), can hardly serve to relieve the employer of 
its responsibility under the Act to desist from dis- 

^^N. L. R. B. V. Pacific Greyhound Line, Inc., 91 F. 2d 458, 459 
(C. C. A. 9), modified on other grounds, 303 U. S. 272. 

-*' Contentions to that effect were made to and im])licit]y re- 
jected by the Supreme Court in Wallace Corp. v. N. L. R. B., 323 
U. S. 248 (Employer's Br., pp. 52-54) ; were made to and im- 
plicitly rejected by the Circuit Court of Appeals of the Second 
Circuit in N. L. R. B. v. American White Ch'o.ss Lahoratories, 
Inc., 160 F. 2d 75 (C. C. A. 2) (Employer's Br., pp. 3-5) ; were 
made to and implicitly rejected by this Court in the Local 2880 
ease (Employer's Br., pp. 6, 19-20). 



39 

criminatory practices. To sanction an employer's 
adoption of a "see no evil, hear no evil, speak no 
evil" attitude would be to stultify a salutary principle 
designed to protect the employees' right to choose 
and change representatives ])y imposing upon it an 
unworkable standard of employer knowledge."' Surely, 
it is old law that a person "has no right to shut his 
eyes or ears to the inlet of information," and then 
claim in good faith that he is "without notice."'* 

II 

The Board's finding that the employer knew of the C. I. O.'s 
discriminatory purpose when it acceded to the C. I. O.'s re- 
quest to discharge, and when it refused to reinstate, the 
thirty-seven named employees is supported by substantial 
evidence 

Under the Rutland Court doctrine an employer 
is responsible for the wrongful discharge of employees 



-'It may be noted that Section 8 (a) (3) (B) of the Act, as 
amended, provides that under a union-shop contract ''no em- 
ployer shall justify any discrimination against an employee for 
nonmembership in a labor organization * * * ^y Jie has rea- 
sonable grounds for believing that membership was denied or 
terminated for reasons other than the failure of the employee to 
tender the periodic clues and the initiation fees uniformly re- 
quired as a condition of acquiring or retaining membership.*' 
(Emphasis supplied.) In referring to this provision, the Senate 
Eeport on the bill which became the Act, as amended, stated, '"The 
tests provided by the amendment are based upon facts readily 
ascertainable and do not require the employer knowledge under the 
internal affairs of the union.'' S. Rep. No. 105, 80th Cong., 1st 
Sess., p. 20. This standard of employer knowledge under the 
amended Act appears to be less exacting than that which the 
Board required in this case in the interpretation of the proviso 
to Section 8 (3) of the Act prior to its amendment. See pp. 

42-43, infra. 

'■^^ Simmons Creek Coal Company v. Doran^ 142 U. S. 417, 437, 
quoting from Virginia Court of Appeals in BurmelVs Admr^s v. 
Fauber, 21 Gratt. 446. 463. 



40 

pursuant to a closed-shop agreement only when the 
employer is shown to have knowledge that the in- 
cumbent union disqualified the employees from good 
standing and demanded their discharge for activities 
on behalf of a rival union.'" In the Local 2880 case, 
this Court anticipated that ''Employers well may be 
perplexed by border-line cases of fact as to w^hether 
their employees' dismissals from a closed-shoiD union 
are for such electioneering for a rival union or for 
some of many other union reasons warranting their 
dismissal * * *" (158 F. 2d, at 369). The crux of 
this case is whether or not the employer Unew when 
it acceded to the C. I. O.'s demands that the C. I. O. 
requested the discharge of the thirty-seven named 
employees because of their rival union activity. 

The complexity or simplicity of this fact determina- 
tion does not of course change the duty of the Board 
and the courts in relation to it. This relationship 
has been aptly stated by this Court in N. L. R. B. v. 
Reeves Rubber Co., 153 F. 2d 340, 342 (C. C. A. 9) : "It 
would serve no purpose to collate the unbroken line of 
expressions by the Supreme Court of the United States 
and every one of the United States Circuit Courts of Ap- 
peals, including this Circuit, that the Labor Board tries 
the facts and the reviewing court goes into facts only to 
find whether or not, as a matter of law, there is sub- 

-" The Board has developed a standard of employer knowledge 
by case to case adjudication. Requisite knowledge has been 
deemed lacking as an appropriate basis for employer liability in 
Maffe?^ of Diamond T. Motor Co., 64 N. L. R. B. 1225, and Matter 
of jSpicer Manufacturing Corp., 70 N. L, R. B. 41. For recent 
cases where it has been deemed sufficient, see flatter of E. L. 
Bruce Co., 73 N. L. R. B. 992, and matter of Durasteel Co., 73 
N. L. R. B. 941. 



41 

stance to the evidence upon which the Board has made 
its findings. '"'° As in the Reeves case, so here, the 
record wholly justifies the conclusion that 'Hhere is 
quantity enough of relevant and competent evidence, 
if believed, to support the Board's findings. The 
Board's findings are conclusive to the effect that it 
did believe such evidence. Unless the evidence is so 
improbable upon its face as to the negative belief 
or so inconsistent as to destroy its credence, no error 
of law can be decreed by this reviewing court. The 
evidence given in the case upon which the Board based 
its findings cannot be characterized as either improb- 
able beyond belief, or inconsistent to the point of 
destroying its credence" (153 F. 2d, at 342)."' 



^" As is apparently conceded by the employer (Emp. Br., p. 92), 
the amendments to the Act, in changing the language of Section 
10 (e) from, "The findings of the Board as to the facts, if sup- 
ported by evidence, shall be conclusive," to, "The findings of the 
Board with respect to questions of fact if supported by substantial 
evidence on the record considered as a whole shall be conclusive," 
make no material change in the applicable standard of judicial 
review. N. L. R. B. v. Austin Co., 1G5 F. 2d 592, 595 (C. C. A. 7) ; 
Cf . N. L. R. B. V. Sandy Hill Iron & Brass Works, 165 F. 2d 660, 
663 (C. C. A. 2) ; N. L. R. B. v. Caroline Mills, Inc., 167 F. 2d 212, 
213 (CCA. 5). 

^^ The employer, quoting from A. E. Staley Mfg. Co. v. 
N. L. R. B., 117 F. 2d 868, 878 (C C A. 7), contends that "while 
the report of the examiner is not binding on the Board," where, 
as here, the Boai'd "reaches a conclusion opposed to that of the 
examiner, * * * the report of the latter has a bearing on the 
question of substantial support and materially detracts there- 
from" (Emp. Br., p. 92). However, a trial examiner's report, 
in whatever posture, is recommendatory only, and can neither en- 
hance nor detract from the conclusiveness of the Board's findings 
of fact. N. L. R. B. v. Security W arehouse & Cold Storage Co., 
136 F. 2d 829, 880-831, 834 (C C A. 9) ; ;\^. L. R. B. v. Laister- 
Kauffman. Aircraft Corp., 144 F. 2d 9, 16 (C C A. 8), A^ L. R. B. 
V. Blatt, 143 F. 2d 268, 272, and n. 11 (C C A. 3) . 



42 

A. The evidence showing knowledge 

It is midisputable that the C, I. O.'s purpose in 
securing the discharge of the stewards and the com- 
mitteemen, in precluding their reemployment upon 
application, and in securing the discharge of the 
twenty-eight additional employees, was to stifle the 
movement to displace it as the bargaining repre- 
sentative. The relevant inquiry is whether, in acced- 
ing to the C. I. O.'s demands, the employer was aware 
of the C. I. O.'s purpose. The employer's knowledge 
of reports given directly to it by employees threat- 
ened with discharge by the C. I. O. for their advocacy 
of the A. F. L., its knowledge of the open and wide- 
spread retaliatory campaign conducted by the C. I. O., 
and its knowledge of other circumstances demonstrat- 
ing the C. I. O.'s discrimmatory purpose could not 
fail to apprise the employer of the C. I. O.'s aim. In 
concluding that the employer ^^knew of the C. I. O.'s 
reason for demanding the discharges," the Board 
summarized the i3ertinent facts as follows (R. I, 
76-78) : 

Thus, several employees reported to manage- 
ment representatives that the C. I. O. was 
threatening them with discharge under the 
closed-shop contract for rival miion activity; 
and the C. I. O.'s campaign along this line, 
both orally and by written leaflets, was open 
and widespread. Moreover, the [employer's] 
knowledge is further shown by its refusal to 
accede to the C. I. O.'s request for the dis- 
charge of what it apparently deemed to be too 
large and obvious a number of anti-C. I. O. 
employees. It is true that the [employer] was 
not in possession of all the facts prior to the 



43 

first and second groups of discharges. Before 
the discharge of the committeemen at the ter- 
mination of the strike on August 3, 1945, how- 
ever, the [employer] learned of the C. I. O.'s 
plan to use its closed-shop contract to remove 
its opponents, for when C. I. O. Vice Presi- 
dent Heide discovered the anti-C. I. O. activ- 
ity of the committeemen, he baldly told two 
management representatives. Vice President 
Railey and Superintendent Altman, that the 
commiteemen were thereupon being suspended. 
And before the discharge of the stewards the 
[employer] must have learned of their anti- 
C. I. O. activity, for it is unreasonable to sup- 
pose that it vrould have agreed to the request 
made by one of them to shut down operations 
in order to enable working employees to attend 
a meeting the stewards planned to hold with- 
out ascertaining the reason for the meeting. 
Moreover, the [employer], when it refused the 
reinstatement application of these two groups 
of discharged employees on August 17, 1945, 
was clearly apprised of the nature of the dis- 
missals by the formal charges of discrimination 
which the A. F. of L. had filed with the Board. 
Finally, Labor Relations Director Wood ad- 
mitted at the hearing, without making any dif- 
ferentiation among the various groups of dis- 
charges and refusals to reinstate, that he 
thought one of the reasons for the C. I. O.'s 
action was the complainants' anti-C. I. O. 
activity. 

Consideration of the interrelated events preceding 
the discharges and the denials of reemployment con- 
clusively supports the Board's conclusion. 

804666 — 48 4 



44 

The movement to oust the C. I. O. as the bargaining 
representative came into being after a six-month 
period of steadily growing employee mirest and dis- 
satisfaction with the C. I. O. Apart from the em- 
ployer's general awareness of the state of employee 
opinion in the plant {supra, p. 16, n. 9), the plant 
stewards frequently reported their discontent with 
the C. I. O. officials to the employer. Only four days 
before the execution of the extension of the closed- 
shop agreement on July 24, a steward warned Vice 
President Railey of impending labor troubles at the 
plant. It was against this background of known em- 
ployee disquiet that Superintendent Altman, upon 
seeing the notice of the first anti-C. I. O. meeting to 
be held on July 30, reported it to Labor Relations 
Director Wood when asked by him ''if anything un- 
usual had happened." It was against this back- 
ground, too, that Luchsinger, a steward, and Olsen 
obtained Superintendent Altman 's agreement to shut 
down the plant for two hours in order to afford the 
night-shift employees an opportunity to attend the 
meeting. That so important an interruption in pro- 
duction, apparently miprecedented, would be au- 
thorized to facilitate an employees' meeting without 
managerial ascertainment of its purpose is, to say 
the least, highly unlikely. The relationship between 
this prospective meeting, designed to lay the ground- 
work for displacement of the C. I. O. as bargaining 
agent, and the prompt request by the C. I. O. for the 
discharge of the five stewards who were its moving 
force, is patent. 



45 

Immediately following the suspension and dis- 
charge of the five stewards for their part in planning 
the anti-C. I. O. meeting, a C. I. O. leaflet was widely 
distributed throughout the plant warning the eni- 
ployees against attendance at this ''illegal meeting 
* * * called by certain employees now vmder sus- 
pension * * * at the risk of losing membership 
and employment." Vice President Railey acknowl- 
edged that the plant was "in a state of turmoil." 
Notwithstanding the C. I. O.'s warning, most of the 
employees attended the meeting and voted to form 
a new labor organization as well as to seek the rein- 
statement of the stewards who were leading the in- 
surgent movement. Promptly the next morning, the 
committeemen requested Vice President Railey to re- 
instate the stewards. They informed him that a tele- 
gram had been dispatched, which Railey received dur- 
ing the conference, advising him of the employees' 
desire to replace the C. I. O. as bargaining repre- 
sentative. Vice President Railey conceded that '*it 
became quite apparent," during the interchange be- 
tween the committeemen and the C. I. O. officials at 
this meeting, ''that there was a schism developing in 
the ranks of the C. I. O." Indeed, on this very occa- 
sion, striking its second blow against the leadership 
of the insurgent movement, the C. I. O. notified the 
employer of the suspension of the committeemen. 

Concurrently, with the suspension of the commit- 
teemen, another C. I. O. leaflet was widely distributed 
throughout the plant warning the employees that 
aligmnent with " Sherman-Marshall-Lmideberg & 



46 

Co.," who were the stewards and committeemen, 
would bring summaiy dismissal mider the closed-shop 
contract. That same afternoon, a second anti-C. I. O. 
meeting was held, again attended by most of the em- 
ployees, at which Vice President Railey, who had 
been invited to speak, sought to persuade the em- 
ployees that the closed-shop agreement gave him no 
alternative but to discharge the stewards. Railey 's 
attendance and si)eech at this meeting, at which the 
temper and object of the employees was patent, ne- 
gates belief that he was unaware of the C. I. O.'s 
purpose. Railey 's explanation failed to satisfy the 
employees, and, protesting the high-handed dispatch 
of their leadership, they refused to return to work 
for two and one-half days, a work stopi^age which 
afforded the employer dramiatic realization of the 
depth of the employees' desire to change bargaining- 
representatives. 

On August 3, after affiliation with the A. F. of L. 
had been completed at a third anti-C. I. O. meeting, 
all the employees returned to work with the exception 
of the stewards, who had been previously discharged, 
and the committeemen, who had been told the day be- 
fore b}^ the employer that their employment was 
terminated because of their suspension by the C. I. O. 
The collocation of events between July 30 and August 
2, during which the intensity of the rift between the 
C. I. O. and the employees was dramatically manifest, 
ending with the definitive termination of the employ- 
ment of the stewards and committeemen on August 3, 
could scarcely have left the emj^loyer with doubt as to 



47 

the C. I. O. 's discriminatory purpose when it complied 
with the C. I. O.'s discharge demands. 

Whatever doubt the employer may have entertained 
concerning the C. I. O's reason for the suspension 
of the stewards and the committeemen was dissipated 
by events occurring prior to August 17 when the stew- 
ards and committeemen applied for and were denied 
reemployment. In the interim between August 3 and 
August 17, as the employer knew, the A. F. L. invoked 
the Board's election machinery as well as its proc- 
esses for the redress of unfair labor j)ractices. The 
A. F. L.'s petition for investigation and certification 
of representatives was filed on August 3, an informal 
conference attended by the employer, the A. F. L., 
and the C. I. O. pertaining to it was held at the 
Board's regional office on August 8, and notice of 
formal hearing was received by the employer on 
August 17. Electioneering by both unions was flour- 
ishing, and the tenor of the C I. O.'s retaliatory 
campaign was plain. Moreover, the first of the re- 
ports from threatened employees had been received 
by the employer's officials on August 13, and em- 
ployee Zulaica, in complaining of the attempt by the 
C. I. O. to intimidate him, was advised by Assistant 
Superintendent Stanberry to the effect: *'I think all 
your trouble is because you are wearing those buttons. 
If you take them off, you won't have that trouble, see. 
You can keep that in your heart and take your buttons 
off. They could never take that out of your heart 
if you wanted to go into another union" {supra, 
p. 18). Finally, Labor Relations Director Wood ad- 



48 

mitted at the hearing, without making any differentia- 
tion among the various groups of discharges and re- 
fusals to reinstate, that he thought one of the reasons 
for the C. I. O.'s action was the anti-C. I. O. activity 
of the A. F. L. adherents (R. I, 78; R. Ill, 737). 
Accordingly, the suspension of the stewards and com- 
mitteemen by the C. I. O. because of their leader- 
ship of the movement to oust the C. I. O. as bar- 
gaining representative was known to the employer. 
Its refusal to reemploy them on August 17, knowing 
that their suspension by the C. I. O. was actuated by 
their protected activity on behalf of the A. F. L., is 
unambiguously within the rule ''that discrimination 
in hiring is twin to discrimination in firing" and the 
Board is empowered "to restore to a man employment 
which was wrongfully denied him." Phelps-Dodge 
Corporation v. N. L. R. B., 313 U. S. 177, 187-188; 
N. L. B. B. V. Security WareJiouse & Cold Storage 
Co., 136 F. 2d 829, 833-834 (C. C. A. 9). The Board's 
conclusion that the stew^ards and committeemen were 
refused reinstatement by the employer with knowledge 
that they were denied employment because of their 
protected activities on behalf of a rival union is plain- 
ly proper (R. I, 78, 79). 

; It was against this fully developed pattern of 
retaliation that the employer, in addition to the termi- 
nation of the employment of the stewards and the 
committeemen as leaders of the insurgent movement, 
acceded to the C. I. O.'s request to discharge the 
twenty-eight additional employees. Having elimi- 
nated the . leadership, the C. I. O. sought to stifle 
the employees' rival union activity b}^ striking a blow 



49 

against the main body of the insurgent movement. 
The C. I. O.'s principal thrust fell on August 31 and 
September 1 when twenty-four of the twenty-eight 
employees were discharged. The remaining four dis- 
charges on September 5, 7, and 11 were part of the 
same retaliatory pattern. 

This pattern left little to the imagination. Its 
design was manifest in the hectic organizational 
period between July 30 and August 3 during which 
most of the 313 employees struck in protest against 
the C. I. O.'s discriminatory action (supra, pp. 10, 12- 
13) ; it was manifest in the C. I. O.'s retaliatory cam- 
paign epitomized in its widely circulated August 22 leaf- 
let, ''Any Peet's employee reported as trying to bolt the 
C. I. O. and join the A. F, L. or wearing an AFL 
button, will be taken off the job" {supra, pp. 16-17) ; 
it was manifest in C. I. O. threats to individual 
A. F. L. adherents which were reported to the em- 
ployer {supra, pp. 17-19). Moreover, the C. I. O.'s 
extravagant request on August 30 that seventy em- 
ployees be discharged, upon the omnibus, but trans- 
parent, ground that they were not in "good standing," 
was of necessity a demonstration to the employer of 
the C. I. O.'s discriminatory purpose since it was 
explicable on no other basis {supra, p. 18). Indeed 
during the turbulent session on September 1, when 
the discharge of eighteen employees was effectuated, 
the C. I. O. was directly accused of retaliatory tactics 
by the A. F. L. adherents, and Labor Relations Di- 
rector Wood in effect confessed managerial knowl- 
edge of the C. I. O.'s discriminatory purpose when 



50 

he said, '*If you had kept this quiet about the AFL this 
wouldn't have happened to you" (supra, p. 22). In 
the light of these circumstances, to conclude that the 
employer did not know the C. I. O.'s punitive purpose 
would be to ascribe to the employer's officials a degree 
of credulity in the conduct of ordinary affairs to 
which experienced businessmen are not customarily 
addicted. 

The employer's conduct in acceding to the C. I. O.'s 
discharge demands, inexplicable upon the basis of 
lack of knowledge of the C. I. O.'s discriminatory 
purpose, is wholly consistent with the different hy- 
pothesis which it urges in its brief to exculpate itself 
(Emp. Br., pp. 14, 46, 47-48, 116-117). Its course 
of action was predicated upon the rigid assumption 
that its closed-shop agreement imposed upon it an 
inflexible obligation to abide absolutely by the C. I. O.'s 
demands. The employer's representation to dis- 
charged employees between July 30 and September 
11 was a consistent plea that under the closed-shop 
agreement it had no alternative but to dismiss them 
upon demand. (R. Ill, 726-727 ; supra, pp. 8, 11, 12, 20, 
22.) This erroneous legal theory held out to the em- 
ployer the possibility that it could avoid its duty under 
the Act by counter-poising to it an exaggerated duty 
under its closed-shop agreement, and thus render ir- 
relevant its knowledge that the C. I. O.'s request for 
the discharge of the employees was based on the 
C. I. O.'s desire to punish the employees for engag- 
ing in activities to replace it as the bargaining repre- 
sentative. The employer's reliance upon this mis- 



51 

taken view of the law explains its indi:fference to its 
knowledge of the C. I. O.'s discriminatory purpose, 
but it does not serve to relieve the employer from 
answerability for its acts. It is elementary that a 
mistake of law does not shield the wrongdoer from 
the consequence of its unlawful conduct.^' Accord- 
ingly, the Board's conclusion that the employer "dis- 
charged and refused to reinstate the complainants in 
violation of Section 8 (1) and (3) of the Act" is 
fully warranted (R. I, 79). 

B. The employer's contentions 

An analysis of the rea'^,ons suggested by the em- 
ployer to discount the Board's conclusion that the 
employer knew of the C. I. O.'s discriminatory pur- 
pose serves to confirm the propriety of the Board's 
finding. 

/. The employer's asserted reliance upon the telegram of July 31 as an act 
of uithdrawal from the C. I. O. 

The employer contends that the telegram it re- 
ceived from the insurgent employees on July 31, dur- 
ing the conference at which the reinstatement of the 
stewards was urged, notifying it "of action taken 
by more than 200 employees of Colgate Palmolive 
Peet Co. all being former members ILWU 1-6 and 
being more than 50 percent of total employees have 
withdrawn and severed relations with ILWU-6 as 
collective bargaining agent" {supra, p. 10), consti- 



2- Restatement, Restitution, § 7, Comment a : "Whether or not 
considered to be a fact, a rule of law is unlike other facts in that 
a person who does an act which otherwise would be unlawful is 
ordinarily not excused from liability because of a mistaken belief, 
however reasonable, that his act is rightful." 



52 

tuted a withdrawal of membership from the C. I. O. 
by the A. F. L. adherents and was accordingly a 
valid gromid for discharge under the closed-shop 
agreement (Emp. Br., pp. 4, 14, 38-39, 40, 103-104). 
As this Court noted in a comparable situation, "the 
Board felt, and we think justifial)ly, that this claim 
of motivation is a palpable afterthought. [The tele- 
gram was] confessedly not assigned as a ground for 
[the] discharge [s] at the time [they] occurred, nor 
[was it] mentioned as a motivating factor in [the 
employer's] answer filed in the proceeding." Wells, 
Inc., V. N. L. R. B., 162 F. 2d 457, 459 (C. C. A. 9). 

The C. I. O. at no time treated the telegram as 
an effective withdraw^al from membership in the 
C. I. O., and at no time represented to the employer 
that its request for the discharge of the A. F. L. 
adherents was based on the telegram as an act of 
withdrawal from membership. Its formal represen- 
tations contained in its letters to the employer re- 
quested the discharge of named employees because 
they had been '^suspended from membership" pend- 
ing a trial before a C. I. O. tribunal upon charges 
filed against them (R. Ill, 846-847, 784-785, 792- 
793). [Italics supplied.] As is apparent, the 
C. I. O. could not consistently maintain, and the em- 
ployer cannot reasonably assert that it believed, that 
the employees were not members of the C. I. O., 
but that the C. I. O. at the same time asserted juris- 
diction over them for the purposes of trial. 

The telegram speaks of "more than 200 employees" 
and "more than 50 percent of total employees." The 



53 

disparate selection of a minority of these emj^loyees 
for discharge emphasizes that the telegram as an 
ostensible act of withdrawal from the C. I. O. played 
no part in the discharge demands. Moreover, the 
snggested construction glosses over the phrase read- 
ing "severed relations with I. L. W. U.-6 as collec- 
tive 'bargaining agent." [Italics supplied.] This is 
the key to the interpretation of the telegram and 
indicates the meaning which was ascribed to it by all, 
including the employer and the C. I. O. Its purport 
and intent, and the employer so understood it, was 
to express the desire of a majority of the employees 
to replace the C. I. O. as bargaining representative. 
As explained by Committeeman Sherman in his testi- 
mony: "It was not the intent of the telegram to seg- 
regate individuals as discontinuing affiliations vv^ith 
the C. I. O. The intent of the telegram was that we 
were discontinuing the bargaining agency, fomiing 
another group." (R. II, 399). 

The Board correctly concluded (R. I, 78, n. 8) : 
"As for the complainants' withdrawal from the 
C. I. O., which would ordinarily entitle the [employ- 
er] to discharge them in view of the closed-shop con- 
tract, it will be observed that the C. I. O. did not 
accept their withdrawals nor is there any evidence 
that the [employer] discharged them or rejected the 
reinstatement application of the stewards and the 
committeemen for that reason. On the contraiy, the 
[employer's] answer and evidence show beyond dis- 
pute that the [employer] acted because of the com- 
plainants' suspension by the C. I. O. pending deter- 



54 

mination of charges of anti-C. I. 0. activity, and tliat 
the attempted withdrawals played no part therein. 
Apparently the significance of the 'withdrawals' 
occurred to the [employer] for the first time in its 
brief to the Trial Examiner after the close of the 
hearing." The employer's belated effort to imbue 
this inartistically drawn telegram with significance 
which it does not possess injects into the proceedings 
an issue which does not exist. 

2. The employer's asserted inability to distinguish between legitimate and 
discriminatory C. I. O. purposes 

Taking for its text a statement which appears in 
the original charge filed in this proceeding alleging 
the discriminatory dismissal of the stewards and com- 
mitteemen "because of their refusal to adhere to pol- 
icies of Warehouse Union Local 1-6 I. L. W. U.," 
(R. I, 93), the employer contends that it was unable 
to determine whether the C. I. O.'s discharge demands 
were motivated by the refusal of the A. F. L. ad- 
herents to conform to C. I. O. policies or by the desire 
of the A. F. L. adherents to effect a change in bar- 
gaining representatives (Emp. Br., pp. 48-49, 106- 
107, 4, 25-27, 43, 44-46, 47, 54-55, 85-87, 93-94, 110- 
111, 120-123). 

In considering this contention, it is necessary care- 
fully to distinguish between the failure of employees 
to conform to valid rules of conduct required by the 
contracting union and the failure of employees to 
agree with the policies underlying those rules which 
leads them to take action to displace the contracting 
union. The desire of employees to change bargaining 



55 

representatives does not arise in vacuo. It is bot- 
tomed on disagreement with the incumbent concern- 
ing the way in which to promote and manage union 
policies. Those poHcies may relate to wage and hour 
issues, day-to-day administration of the collective 
bargaining agreement, attitudes towards racial issues, 
participation of unions in politics, or any of the mani- 
fold problems which are the concomitants of con- 
temporary trade unionism. The genius of democratic 
institutions, of which trade unions are one aspect, 
rests on the interchange of ideas free from re- 
prisal and their submission for decision to the elec- 
toral process. It is a meaningless contradiction in 
terms to grant employees the right to change repre- 
sentatives, but to deny them the right to disagree with 
the incumbent concerning the policies upon which 
an intelligent change must be predicated. The neces- 
sary concomitance of the two is obvious. ''The 
freest of open advocacy of the divergent views of the 
voters," to which this Court gave eloquent expres- 
sion in the Local 2880 case (158 F. 2d, at 369), re- 
quires the freest of open advocacy upon meaningful 
issues. And in effectuating these views, the taking 
of action by employees to displace the contracting 
imion may not, under the guise of failure to con- 
form to the contracting union's rules, be made the 
subject of disciplinary measures. 

We turn then to the record to evaluate the self- 
serving testimony of the employer's officials as to the 
information they had that the stewards, the com- 
mitteemen, and the twenty eight additional employees 



56 

failed to conform to C. I. O. policies. In doing so, 
it is necessary to guard against the easy assumption 
that this information in fact beclouded the indisput- 
able C. I. O. purpose of punishing employees for 
daring to oppose it. In contrast to the unwillingness 
of the employer's officials to testify that they knew 
the patent fact that the C. I. O. w^as abusing the 
closed-shop contract in order to suppress opposition 
to it, they were ready to testify that they knew of 
other facts which they were ostensibl}^ unable to 
identify as inseparable from the C. I. O.'s suppres- 
sive purpose. This question of sheer fact has been 
correctly resolved against the employer b}^ the Board's 
decision. 

Taking the testimony of the employer's officials at 
face value and in its best light, they knew (1) that 
at scattered intervals over a period of at least a year 
prior to the suspension of the stewards, there had 
been some disagreement between the C. I. O. officials 
and the stewards concerning the administration of 
the contract and the manner in which certain indi- 
vidual grievances were to be processed, and that there 
had been some dispute between them concerning the 
implementation of the C. I. O.'s political action pro- 
gram and its nondiscriminatory racial policy (R. 
II, 561, 725-726, 763-768) ; (2) that in protest against 
the discharge of the stewards, the committeemen 
planned a work stoppage in contravention of the war- 
time no-strike pledge of organized labor (R. Ill, 725) ; 
(3) that the twenty-eight additional employees partici- 
pated in the work stoppage (R. Ill, 677) ; and (4) 



57 

that the daily press reported that the work stoppage 
mvolved in part a dispute over the C. I. O.'s non- 
discriminatory racial policy (R. II, 533, 562-563, R. 
Ill, 678, 702). This information did not obscure the 
C. I. O.'s purpose. Rather, it forcibly demonstrated 
its oppressive character. 

Disagreement between the stewards and the C. I. O. 
officials extending over a year concerning union mat- 
ters did not precipitate a request for discharge tmtil 
the stewards took steps to change the 'bargaining 
representative. It was therefore not the fact of dis- 
agreement, but the fact of effective steps to implement 
it, which caused the suspension of the stewards. To 
assume that the employer's officials failed to recognize 
the plain import of this fact is to assume that they 
"lack capacity for making rational connections.'"*^ 

As to the information that the committeemen 
plamied a work stoppage to protest the discharge of 
the stewards, it appears that the employer's officials 
did not even know, during the morning of July 31, 
w^hen the committeemen were ordered discharged by 
the C. I. O. because of their suspension, that a work 
stoppage was contemplated (R. II, 409-410; R. Ill, 
673). Consequently, upon this occasion, the em- 
ployer's officials could not have acted upon the as- 
sumption that the suspension of the committeemen was 
caused by the planning of a then unknown work stop- 
page. Without doubt the employer's officials learned 
of the planned work stoppage shortly thereafter, but 
the effect of this knowledge was dramatically to em- 

^^ Thomm V. Collins, 323 U. S. 516, 535. 



58 

phasize to them the extent of the employees' revolt 
against the efforts of the C. I. O. to nip in the bud 
their movement to change representatives by striking 
at the leadership. It was plainly evident that if the 
C. I. 0. were concerned with avoiding the work stop- 
page qua work stoppage the simple expedient would 
be to permit the reinstatement of the stewards who 
had done no more than exercise their legal right to 
seek a change of representatives. 

As to the discharge of the twenty -eight additional 
employees one month after their participation in the 
w^ork stoppage in v/hich most of the 313 employees 
partook, their disparate selection for discharge could 
not for a moment have been attributed to a belated 
desire by the C. I. O. to vindicate a breach of the no- 
strike pledge which it had itself provoked. The em- 
ployer's officials could not reasonably be presumed to 
have attributed the discharge of the twenty-eight ad- 
ditional employees to the C. I. O. 's interest in avoiding 
interruptions to w^ar work when the C. I. O. itself had 
caused the permanent removal of thirty-seven em- 
ployees and had unsuccessfully attempted the removal 
of seventy employees. Indeed, in refusing to accede 
to the C. I. O.'s request on August 30 to discharge 
the seventy employees, the employer's Labor Relations 
Director, Wood, himself stated to the C. I. O. official: 
"This thing has gone too far. You are getting too 
many people involved here. Why, the first thing you 
know, if this keeps on, we will be shut dowTi" 
{supra, p. 18). 

Finally, the racial issue, like the wage issue, what- 
ever its merits, is but part of the fabric of issues which 



59 

forms the substantive basis for the desire of employees 
to change representatives. In short, unless complete 
lack of ordinar}^ understanding upon the part of the 
employer's officials is assumed, they recognized of 
necessity that the so-called legitimate reasons for the 
requested discharge of the A. F. L. adherents were not 
the factors which induced the C. I. O.'s demands, and 
that the work stoppage dramatically revealed the deep 
rift between the employees and the C. I. O. official- 
dom. As this Court has held, ''The existence of some 
justifiable ground for discharge is no defense if it 
was not the moving cause." Wells, Inc. v. N. L. B. B., 
162 F. 2d 457, 460 (C. C. A. 9). The employer knew, 
in acceding to the C. I. O.'s discharge demands, that 
the ''moving cause" was discriminatory. 

In any event, assuming it can be said in this case 
that the employer was persuaded that the C. I. O. 
acted from both proper and improper motives in re- 
questing the discharge of the A. F. L. adherents, the 
legal consequences are no different than if the em- 
ployer knew, as is the fact, that the sole reason for 
the C. I. O.'s request was the rival unionism of the 
A. F. L. adherents. The necessity for this conclusion 
is apparent from a consideration of the practical 
impossibilit}' of disentangling legitimate from ille- 
gitimate motives where both are concurrently opera- 
tive in impelling a course of conduct, and determin- 
ing whether one without the other would have been 
sufficient to induce the proscribed behavior. Unlawful 
motivation is nonetheless unlawful because accom- 
panied by factors which by themselves would not fall 
under interdiction. It is not consonant with sound 
concepts of legal responsibility to leave the victims 

804666 — 48 5 



60 

of oppressive conduct without the statutory remedy 
because the wrongdoer has been sufficiently ingenious 
to adumbrate ]iis illegal conduct with equivocal law- 
ful considerations. The Second Circuit, confronted 
with this precise issue in the American White 
Cross Lahoratories case, supra, succinctly concluded: 
"Nor is it pertinent tliat, to the company's knowl- 
edge, there vvere other grounds for the discharge re- 
quest." 160 F. 2d, at 77-78. This accords with es- 
tablished practice.^^ 

3. The employer's asserted confusion because the C. I. O. requested the 
discharge of many but not all A. F. L. adherents 

The employer contends that it was unable to as- 
certain the C. I. O.'s purpose because there were. other 
employees, apart from those whose discharges were 
requested, who were electioneering on behalf of the 
xV. F. L, whom it is said the C. I. O. did not molest 
(Emp. Br., pp. 52-53). The employer chooses to 
forget that it itself blocked a clean sweep by refus- 
ing to accede to the C. I. O.'s request for the dis- 
charge of seventy employees on August 30. Nor is 
it exacting to infer, upon the discharge of better 
than ten percent of the working force for A. F. L. 



3*iV. L. R. B. V. Remmgton-Rmid, Inc., 94 F. 2d 862, 872 (C. C. 
A. 2), cert, denied, :^04 U. S. 576: Butler Bros. v. N. L. R. B., 134 
F. 2d 981, 985 (C. C. A. 7) , cert, denied, 320 U. S. 789 : Kansas City 
Power d Light Co. v. N. L. R. B., Ill F. 2d 340, 349 (C. C. A. 8) ; 
Cupphs Co. Mfrs. v. N. L. R. B., 106 F. 2d 100, 117 (C. C. A. 8) ; 
Matter of Lone Star Gas Co., 52 N. L. R. B. 1058, 1060 : Matter of 
United Dredging Co., 30 N. L. R. B. 739, 766, note 24; Matter of 
Dow Chemical Co., 13 N. L. R. B. 993, 1023, enforced, 117 F. 2d 
455 (C. C. A. 6) : Matter of Consumers Research, Inc., 2 N. L, 
R. B. 57, 73; cf. N. L. R. B. v. CAuek Brewing Co., 144 F. 2d 847, 
857 (CCA. 8). 



61 

adherence, that the employer recognized mayhem for 
mayhem although the victim was only partially dis- 
figured.''' 

III. The period during which the employees undertook their 
rival union activities was appropriate for a redetermina- 
tion of bargaining representatives 

Apart from the question of the employer's knowl- 
edge of the contracting miion's discriminatory pur- 
pose, the Rutland Court doctrine requires that the 
employee's rival union activities, in order to be pro- 
tected, must occur at a period during which it is 
appropriate to seek a redetermination of representa- 
tives. Upon this aspect of the case, there is no dis- 
j^ute as to the soundness of the Board's conclusion 
that the rival unionism of the A. F. L. adherents 
occurred during a protected period. 

The Board found the closed-shop agreement {supra, 
p. 5) to have been validly entered into in conformity 
with the proviso to Section 8 (3) of the Act (R. ;I, 
69). The Board concluded, however, that, by virtue 
of the indefinite term of the contract, the employees 
undertook to oust the C. I. O. as their bargaining 
representative at a period during which it was appro- 
priate to seek a redetermination of representatives 
(R. I, 75, 54-55). As the Board succinctly stated, 
in directing the election to resolve the question of 
representation raised by the A. F. L. as a result 
of the rival union activity in this case: "Neither the 



^ Cf. N. L. R. B. V. Luxury, Inc., 123 F. 2d 106, 108-109 (C. C. 
A. 2) ; Triplex Screw Co. v. N.L. R. B., 117 F. 2d 858, 861 (C. C A. 
Q);N.L.R. B. V. Aladdin Industries, Inc., 125 F. 2d 377, 384 (C. C. 
A. 7) , cert, denied, 316 U. S. 706. 



62 

original nor supplemental contracts contain a definite 
termination date. In view of its indefinite dura- 
tion and the fact that it has been in force for at 
least 1 year, we find that the contract and extensions 
thereof, do not constitute a bar to a determination 
of representatives" (R. Ill, 802, 799-805, R. II, 552). 
Underlying the Board's conclusion is the Board's 
well-settled rule concerning the length of time during 
which a union is immune from challenge by virtue 
of a collective bargaining agreement for an indefinite 
term. In determining whether a validly existing 
agreement betw^een an employer and a union pre- 
cludes an election for the purpose of resolving a 
disputed question of representation, the Board bal- 
ances the interest in industrial stability, resulting 
from affording a period of quiet enjoyment to an 
agreement arrived at through collective bargaining, 
with the need of affording to employees reasonable 
intervals at which they may oust or reaffirm their 
bargaining representatives.^*^ In making that equa- 
tion, it is the Board's settled practice, with certain 
refinements irrelevant to the instant case,"' not to 
disturb a contract of reasona])ie duration containing 
a definite termination date unti] the approach of the 
expiration of the contract term."' Where, as here, 
the collective bargaining agreement runs for an in- 
definite period, the Board's rule at the time this case 
was decided required that the union's immunity from 



'•"^ National Labor Kelations Board, Twelfth Annual Report 
(Gov't Print. Off. 1948) , p. 9. 
^^ Id., at pp. 9-14. 
^^ Id., at p. 9. 



63 

challenge end after the contract has been in effect 
for one 3^ear,'^ and thereafter whenever a question 
concerning representation arises an election for the 
purpose of resolving it is timely/" When, in the 
instant case, the A. F. L. adherents undertook ac- 
tivities looking toward the displacement of the C. I. O. 
as their bargaining representative, their rival union- 
ism occurred more than four years after execution 
of the contract (supra, pp. 5-6) and therefor, during 
a time when it was appropriate to seek a change of 
representatives. As this Court has held, the em- 
ployer could not knowingly during such a period, at 
the behest of the incmnbent, invoke the closed-shop 
agreement to place under a pall ''The freest of open 
advocacy of the divergent views of the voters.""' 
Whether the employees are ultimately successful 
through their electioneering in effecting a change is 
immaterial, since the very o])ject of a protected period 
is to afford employees freedom from discrimination 
w^hether in victory or defeat. Uncoerced resort to 
the franchise cannot depend on success in its exercise. 



^^ Recently, "in the interest of promoting greater stability in in- 
dustrial relations,'* the Board has extended to two years the period 
of immunity "accorded to long-term contracts and contracts of 
indefinite duration.-' Matter of Puritan Ice Co., 74 N. L. R. B. 
1311, 1313-1314; 3Iatter of Fitrol Corp., 74 N. L. R. B. 1307; 
TAvelfth Annual Report, supra, at p. 10. 

*" National Labor Relations Board, Eleventh Annual Report 
(Gov't Print. Oflf. 1947), p. 14; cf. Twelfth Annual Report, supra, 
p. 10. 

« Local No. 2880 v. N. L. R. B., 158 F. 2d 365, 369. 

8(4666—48 3 



64 

IV. The Board's construction of the closed-shop agreement is 
consistent with California local law, and in any event fed- 
eral law is paramount to local law 

The employer urges the impropriety of the Board's 
order upon the ground that California local law 
imposes upon the employer an absolute duty to abide 
by the terms of a closed-shop agreement to which it 
is a party, and that, upon failure to perform, the 
employer may be required specifically to perform or 
to answer in damages (Emp. Br., pp. 76-78). Since 
the Board's decision prevents performance of a closed- 
shop agreement where its purpose is to stifle rival 
unionism at an aj^propriate period, the argmnent 
is that the employer is subjected to the inconsistent 
mandates of state and federal forums. The conten- 
tion was made to and implicitly rejected by this Court 
in the Local 2880 case (Br. of Local 2880, pp. 24, 68). 

At the outset it should be ol^served that the Cali- 
fornia Supreme Court takes no such inflexible view 
of the closed-shop agreement as is ascribed to it. It 
holds that a closed-shop agreement may not be utilized 
to cause the termination of a worker's employment 
for non-membership in a lal^or union where member- 
ship in the union is not open to him upon reasonable 
terms. Marinship Corp. v. James, 25 Cal. 2d 721, 
155 Pac. 2d 329; Williams v. International Brother- 
hood of Boilermakers, 27 Cal. 2d 586, 165 Pac. 2d 
903; Bautista v. Jones, 25 Cal. 2d 746, 155 Pac. 2d 343. 
In the Williams case, supra, the Court stated, ^'The 
individual worker denied the right to keep his job 
suffers a loss, and his right to protection against 
arbitrary and discriminatory exclusion should be 



65 

recognized wherever membership is a necessary pre- 
requisite to work" (27 Cal. 2d at 591, 165 Pac. 2d at 
906). In order to show that its decision was in 
harmony with the National Labor Relations Act, the 
Court cited the Board's decision in Matter of Rut- 
land Court Owners, Inc., 44 N. L. R. B. 587, the very 
case which established the rationale w^hich this Court 
approved in the Local 2880 case, and which is the 
foundation of the instant proceeding (27 Cal. 2d at 
592, 165 Pac. 2d at 906). The California Supreme 
Court went on to say that an employer may be en- 
joined from enforcing its closed-shop agreement where 
performance would subject the employees to discrim- 
inatory treatment (27 Cal. 2d at 594, 165 Pac. 2d 
at 907). Accordingly, rather than lending support 
to the employer's contention, California local law 
substantially subscribes to the interpretation of the 
obligations imi:>osed by a closed-shop agreement as 
expressed in the Local 2880 case. 

Moreover, assuming that California local law com- 
mands conduct inconsistent with that required by 
the National Labor Relations Act, there is little 
clearer than that local law must yield to federal law 
where the two cannot stand together. Hamilton v. 
N. L. R, B., 160 F. 2d 465, 471 (C. C. A. 6) ; Bethle- 
hem Steel Co. V. New York State Labor Relations 
Board, 330 U. S. 767; Hill v. Florida, 325 U. S. 538 
N. L. R. B. V. Hearst Publications, 322 IT. S. Ill, 123 
Rice V. Santa Fe Elevator Corp., 331 U. S. 218 
Rice V. Board of Trade, 331 U. S. 247. In Hill v 
Florida, 325 U. S. 538, 542, the Supreme Court ad- 



66 

verted with approval to an instance when the Board 
rejected an employer's defense of its refusal to bar- 
gain based on the union's failure to comply with the 
Florida local law requiring the licensing of a bar- 
gaining representative. There the Supreme Court 
stated: ''Congress did not intend to subject the 'full 
freedom' of employees to the eroding process of 
'varied and perhaps conflicting provisions of state 
lenactments. ' " In support of its conclusion, the 
Supreme Court cited its decision in N. L. R. B. v. 
Hearst Puhlications, 322 U. S. Ill, where at p. 123, 
in language dispositive of the employer's contention, 
it had stated : 

The Wagner Act is federal legislation, ad- 
ministered by a national agency, intended to 
solve a national problem on a national scale. 
Cf. e. g., Sen. Rep. No. 573, 74th Cong., 1st 
Sess., pp. 2-4. It is an Act, therefore, in refer- 
ence to which it is not only proper, but neces- 
sary for us to assume, "in the absence of a plain 
indication to the contrary, that Congress 
* * * is not making the application of the 
federal act dependent on state law." Jerome 
V. United States, 318 U. S. 101, 104. Nothing 
in the statute's background, history, terms or 
purposes indicates its scope is to be limited by 
such varying local conceptions, either statutory 
or judicial, or that it is to be administered in 
accordance with whatever different standards 
the respective states may see tit to adopt for 
the disposition of unrelated, local problems. 



67 

V. The Board's decision and order do not violate the due 
process clause of the Fifth Amendment 

The employer contends that the Board's order is in 
contravention of the Fiftli Amendment to the Fed- 
eral Constitution in that it impairs the obligations 
of a contract and requires the reinstatement with 
back pay of the discharged employees without due 
process of law (Emp. Br., pp. 11, 57, 84). It is late 
in the day to make that argument. "The Board's 
order does not violate the Fifth Amendment * * *. 
In the exercise of the commerce power, Congress may 
impose upon contractual relationships reasonable 
regulations calculated to protect commerce against 
threatened industrial strife. N. L. B. B. v. Jones & 
Laughlin Corp., 301 U. S. 1, 48. The Board's order 
there sustained required the reinstatement of dis- 
charged employees." N. L. R. B. v. Mackay Radio & 
Telegraph Co., 304 U. S. 333, 347. See also Phelps 
Dodge Corp. v. N. L. R. B., 313 U. S. 177, 187; 
N. L. R. B. V. Star Publishing Co., 97 F. 2d 465, 471 
(CCA. 9). 

CONCLUSION 

For the foregoing reasons, it is respectfully sub- 
mitted that a decree should issue enforcing the Board's 

order in full. 

David P. Findling, 

Associate General Counsel, 
Ruth Weyand, 
Acting Assistant General Counsel, 
Marcel Mallet-Prevost, 
Bernard Dunau, 

Attorneys, 

National Labor Relations Board. 
September 1948. 



APPENDIX 

The relevant provisions of the National Labor Rela- 
tions Act (49 Stat. 449, 29 U. S. C, Sec. 151, et seq.) 
are as follows: 



RIGHTS OF EMPLOYEES 

Sec. 7. Employees shall have the right to 
self -organization, to form, join, or assist labor 
organizations, to bargain collectively through 
representatives of their own choosing, and to 
engage in concerted activities, for the purpose 
of collective bargaining or other mutual aid or 
protection. 

Sec. 8. It shall be an unfair labor practice 
for an employer — 



(3) By discrimination in regard to hire or 
tenure of employment or any term or condition 
of employment to encourage or discourage mem- 
bership in any labor organization: Provided, 
That nothing in this Act, or in the National 
Industrial Recovery Act (U. S. C, Supp. VII, 
title 15, sees. 701-712), as amended from time 
to time, or in any code or agreement approved 
or prescribed thereunder, or in any other 
statute of the United States, shall preclude an 
employer from making an agreement with a 
labor organization (not established, maintained, 
or assisted by any action defined in this Act 
as an mifair labor practice) to require, as a 
condition of employment, membershij) therein, 
if such labor organization is the representative 
of the employees as provided in Section 9 (a), 

(68) 



69 



in the appropriate collective bargaining unit 
covered by such agreement when made. 



EEPEESENTATIVES AND ELECTIONS 

Sec. 9. (a) Representatives designated or 
selected for the purj^oses of collective bargain- 
ing by the majority of the employees in a unit 
appropriate for such purposes, shall be the ex- 
clusive representatives of all the employees in 
such unit for the purposes of collective bar- 
gaining in respect to rates of pay, wages, hours 
of employment, or other conditions of employ- 
ment: Provided, That any individual employee 
or a group of employees shall have the right 
at any time to present grievances to their 
employer. 

***** 

(c) Whenever a question affecting commerce 
arises concerning the representation of employ- 
ees, the Board may investigate such contro- 
versy and certify to the parties, in writing, the 
name or names of the representatives that have 
been designated or selected. In any such in- 
vestigation, the Board shall provide for an ap- 
propriate hearing upon due notice, either in 
conjunction with a proceeding mider Section 10 
or otherwise, and may take a secret ballot of 
employees, or utilize any other suitable method 
to ascertain such representatives. 

***** 

PEEVEXTIOX OF UXFAIE LABOE PEACTICES 
***** 

(c) * " * If upon all the testimony taken 
the Board shall be of the opinion that any per- 
son named in the complaint has engaged in or is 
engaging in any such unfair labor joractice, 
then the Board "^shall state its findings of fact 
and shall issue and cause to be served on such 



70 

person an order requiring such person to cease 
and desist from such unfair labor practice, and 
to take such affirmative action, including rein- 
statement of employees with or without back 
pay, as will effectuate the policies of this Act. 
***** 

(e) The Board shall have power to petition 
any circuit court of appeals of the United States 
* * * wherein the unfair labor practice in 
question occurred or wherein such person re- 
sides or transacts business, for the enforcement 
of such order and for appropriate temporary 
relief or restraining order, and shall certify and 
file in the court a transcript of the entire record 
in the proceeding, including the pleadings and 
testimony upon which such order was entered 
and the findings and order of the Board. Upon 
such filing, the court shall cause notice thereof 
to be served upon such person, and thereupon 
shall have jurisdiction of the proceeding and 
of the question determined therein, and shall 
have power to grant such temporary relief or 
restraining order as it deems just and proper, 
and to make and enter upon the pleadings, 
testimony, and proceedings set forth in such 
transcript a decree enforcing, modifying, and 
enforcing as so modified, or setting aside in 
whole or in part the order of the Board. No 
objection that has not been urged before the 
Board, its member, agent or agency, shall be 
considered by the court, unless the failure or 
neglect to urge such objection shall be excused 
because of extraordinary circumstances. The 
findings of the Board as to the facts, if sup- 
ported by evidence, shall be conclusive. * * * 

The relevant provisions of the Labor Management 
Relations Act (61 Stat. 136, 29 U. S. C, Supp. I, sec. 
141, et seq.), are as follows: 



71 



TITLE I — AMEXDMEXT OF NATIONAL LABOR 
RELATIONS ACT 

Sec. 101. The National Labor Relations Act 

is hereby amended to read as follows: 

***** 

'Wrights of employees 

''Sec. 7. Employees shall have the right, to 
self -organization, to form, join, or assist labor 
organizations, to bargain collectively through 
representatives of their own choosing, and to 
engage in other concerted activities for the 
purpose of collective bargaining or other mutual 
aid or protection, and shall also have the right 
to refrain from any or all of such activities 
except to the extent that such right may be 
affected by an agreement requiring membership 
in a labor organization as a condition of em- 
ployment as authorized in section 8 (a) (3). 

''unfair labor practices 

"Sec. 8. (a) It shall be an unfair labor practice 

for an employer — 

***** 

"(3) by discrimination in regard to hire or 
tenure of employment or any term or condition 
of employment to encourage or discourage mem- 
bership in any labor organization: Provided, 
That nothing in this Act, or in any other statute 
of the United States, shall preclude an employer 
from making an agreement with a labor organ- 
ization (not established, maintained, or assisted 
by any action defined in section 8 (a) of this 
Act as an imfair labor practice) to require as a 
condition of employment membership therein 
on or after the thirtieth day following the be- 
ginning of such employment or the effective 
date of such agreement, whichever is the later, 
(i) if such labor organization is the representa- 



72 

tive of tlie employees as provided in section 9 
(a), in the appropriate collective-bargaining 
nnit covered by such agreement when made ; and 
(ii) if, following the most recent election held 
as provided in section 9 (e) the Board shall have 
certified that at least a majority of the em- 
ployees eligible to vote in such election have 
voted to authorize such labor organization to 
make such an agreement: Provided further^ 
That no employer shall justify any discrimina- 
tion against an employee for nonmembership in 
a labor organization (A) if he has reasonable 
grounds for believing that such membership 
was not available to the employee on the same 
terms and conditions generally applicable to 
other members, or (B) if he has reasonable 
grounds for believing that membership was 
denied or terminated for reasons other than 
the failure of the employee to tender the peri- 
odic dues and the initiation fees uniformly re- 
quired as a condition of acquiring or retaining 

membership ; 

***** 

''(b) It shall be an unfair labor practice for 

a labor organization or its agents — 

***** 

''(2) to cause or attempt to cause an em- 
ployer to discriminate against an employee in 
violation of subsection (a) (3) or to discrimi- 
nate against an employee with respect tg whom 
membership in such organization has been de- 
nied or terminated on some ground other than 
his failure to tender the periodic dues and the 
initiation fees uniformly required as a condi- 
tion of acquiring or retaining membership; 



REPRESENTATIVES AND ELECTIONS 

"Sec. 9. (a) Representatives designated or 
selected for the purposes of collective bar- 
gaining by the majority of the employees in a 



73 

unit appropriate for such purposes, shall be 
the exclusive representatives of all the em- 
ployees in such unit for the purposes of col- 
lective bargaining in respect to rates of pay, 
wages, hours of employment, or other condi- 
tions of employment: Provided, That any indi- 
vidual employee or a group of employees shall 
have the right at any time to present griev- 
ances to their employer and to have such griev- 
ances adjusted, without the intervention of the 
bargaining rex^resentative, as long as the ad- 
justment is not inconsistent with the terms of 
a collective-bargaining contract or agreement 
then in effect: Provided further, That the bar- 
gaining representative has been given oppor- 
tunity to be present at such adjustment. 

w vT Tv w tT 

''(c) (1) Whenever a petition shall have 
been filed, in accordance with such regulations 
as may be prescribed by the Board — 

"(A) by an employee or group of employees 
or any individual or labor organization acting 
in their behalf alleging that a substantial num- 
ber of employees (i) wish to be represented for 
collective bargaining and that their employer 
declines to recognize their representative as the 
representative defined in section 9 (a), or (ii) 
assert that the individual or labor organization, 
which has been certified or is being currently 
recognized by their employed as the bargaining 
representative, is no longer a representative as 
defined in section 9 (a) ; or 

"(B) by an employer, alleging that one or 
more individuals or labor organizations have 
presented to him a claim to be recognized as the 
representative defined in section 9 (a) ; 
the Board shall investigate such petition and if 
it has reasonable cause to believe that a question 
of rei^resentation affecting commerce exists shall 
provide for an appropriate hearing upon due 
notice. Such hearing may be conducted by an 



74 

officer or employee of the regional office, who 
shall not make any recommendations with re- 
spect thereto. If the Board finds upon the 
record of such hearing that such a question of 
representation exists, it shall direct an election 
by secret l^allot and shall certify the results 

thereof. 

***** 

''(e) (1) Upon the filing with the Board by a 
labor organization, which is the representative 
of employees as provided in section 9 (a), of a 
petition alleging that 30 per centum or more of 
the employees within a unit claimed to be ap- 
propriate for such purposes desire to authorize 
such labor organization to make an agreement 
with the employer of such employees requiring 
meml^ership in such labor organization as a 
condition of employment in such unit, upon an 
appropriate showing thereof the Board shall, 
if no question of representation exists, take a 
secret ballot of such employees, and shall cer- 
tify the results thereof to such labor organiza- 
tion and to the employer. 

"(2) Upon the filing with the Board, by 30 
per centum or more of the employees in a bar- 
gaining unit covered by an agreement between 
their employer and a labor organization made 
pursuant to section 8 (a) (3) (ii), of a petition 
alleging they desire that such authority be re- 
cinded, the Board shall take a secret ballot of 
the employees in such unit, and shall certify 
the results thereof to such labor organization 
and to the employer. 



"PRE^TENTIOX OF UNFAIR LABOR PRACTICES 



"[Sec. 10] (e) The Board shall have power 
to petition any circuit court of appeals of the 
United States * * * wherein the unfair 
labor practice in question occurred or wherein 



75 

such person resides or transacts business, for 
the enforcement of such order and for appro- 
priate temporary relief or restraining order, 
and shall certify and tile in the court a trans- 
script of the entire record in the proceedings, 
including the pleadings and testimony upon 
which such order was entered and the findings 
and order of the Board. Upon such filing, the 
court shall cause notice thereof to be served 
upon such person, and thereupon shall have 
jurisdiction of the proceeding and of the ques- 
tion determined therein, and shall have power 
to grant such temporary relief or restraining 
order as it deems just and proper, and to make 
and enter upon the pleadings, testimony, and 
proceedings set forth in such transcript a de- 
cree enforcing, modifying, and enforcing as so 
modified, or setting aside in whole or in part 
the order of the Board. No objection that has 
not been urged before the Board, its member, 
agent, or agency, shall be considered by the 
court, unless the failure or neglect to urge such 
objection shall be excused because of extraor- 
dinary circumstances. The findings of the 
Board with respect to questions of fact if 
supported by substantial evidence on the record 
considered as a whole shall be conclu- 

?5 



sive. 
* 



EFFECTIVE DATE OF CERTAIN^ CHAXGES 

Sec. 102. No provision of this title shall be 
deemed to make an unfair labor practice any 
act which was performed prior to the date of 
the enactment of this Act which did not con- 
stitute an unfair labor practice prior thereto, 
and the provisions of section 8 (a) (3) and 
section 8 (b) (2) of the National Labor Re- 
lations Act as amended by this title shall not 
make an unfair labor practice the performance 
of any obligation under a collective-bargaining 
agreement entered into prior to the date of the 



76 

enactment of this Act, or (in the case of an 
agreement for a period of not more than one 
year) entered into on or after such date of 
enactment, but prior to the effective date of 
this title, if the performance of such obligation 
would not have constituted an unfair labor 
practice under section 8 (3) of the National 
Labor Relations Act prior to the effective date 
of this title, unless such agreement was ren- 
newed or extended subsequent thereto. 



POINTING OhFiCE ; 1948 



No. 11,514 



IN THE 



United States Court of Appeals 

For the Ninth Circuit 



Colgate-Palmolive-Peet Company, 

Petitioner, 

vs. 

National Labor Relations Board, 

Respondent, 
and 

International Chemical Workers 
Union, A.F.L., et al., 

Intervenors, 
and 

Warehouse Union Local 6, Inter- 
national Longshoremen's & Ware- 
housemen's Union (CIO), 

Intervenor, 
and 

National Labor Relations Board, 

Petitioner, 

vs. 

Colgate-Palmolive-Peet Company, 

Respondent. 



^tP Z6 1948 

REPLY BRIEF FOR PETITIONER, 
COLGATE=PALMOLIVE=PEET COMPAN^L P, O'BRIEN, 



OUbR 



Philip S. Ehrlich, 
Bartley C. Crum, 
R. J. Hecht, 

2002 Euss Building, San Francisco 4, California, 

Attorneys for Petitioner, 
Colgate-Palmolive-Peet Company. 



Subject Index 



I. Page 

Inaccuracies in the Board 's statement of the facts 1 

II. 

Inaccuracies in the Board's statement of the facts in its 
argument 6 

III. 

The Board persists in distorting the record through invalid 
inferences 9 

IV. 

The Board misconceives petitioner's argument challenging the 
soundness of this Court's api)roval of the Rutland Court 
Doctrine in the Local 2880 case 11 

V. 

The Board's contentions that its decision does not require the 
petitioner to assume the role of judge and inquisitor are 
contradicted by the contents of its brief and by its decisions 14 

VI. 

The Board's construction of a closed shop agreement is not 
consistent with California local law and the Board's inter- 
pretation cannot be ]jermitted to override local law 17 

VII. 

Legal propositions advanced in petitioner's brief which the 
Board has conceded by its failure to combat them 19 



Table of Authorities Cited 

Oases Pages 

Galloway v. United States (1943), 319 U. S. 372, 87 L. Ed. 
1458 11 

Local 2880, etc. v. N.L.R.B. (1946), 158 Fed. (2d) 365 12, 16 

M. & M. Wood Working Co. v. N.L.R.B. (1939), 101 Fed. 

(2d) 938 12 

Matter of Diamond T Motor Car Company (1945), 64 

N.L.R.B. 1225 16 

Matter of Lewis Meier & Company (1947), 73 N.L.R.B. 520 13 

Matter of Rutland Court Ownere, 44 N.L.R.B. 587 11 

Matter of Spiccr Manufacturing Corporation (1946), 17 

N.L.R.B. 41 16 

N.L.R.B. V. Fansteel Metallurgical Corporation (1939), 306 
U. S. 240, 83 L. Ed. 627 18 

N.L.R.B. V. Southern Steamship Co. (1942), 316 U. S. 31, 
86 L. Ed. 1246 18 

Southern Steamship Co. v. National Labor Relations Board, 

310 U. S. 46, 86 L. Ed. 1259 19 

State V. Miller (1937), 193 S. E. 388, 212 N. C. 361 17 

Statutes 

Wagner Act, Section 7 12 

Texts 

10 Cal. Law Rev. 300, at 305 14 



No. 11,514 

IN THE 



United States Court of Appeals 

For the Ninth Circuit 



Colgate-Palmolive-Peet Company, 

Petitione7% 
vs. 

National Labor Relations Board, 

Respondent, 
and 

International Chemical Workers 
Union, A.F.L., et al., 

Intervenors, 
and 

Warehouse Union Local 6, Inter- 
national Longshoremen's & Ware- 
housemen's Union (CIO), 

Intervenor, 
and 

National Labor Relations Board, 

Petitioner, 

vs. 

Colgate-Palmolive-Peet Company, 

Respondent. 



REPLY BRIEF FOR PETITIONER, 
COLGATE=PALMOLIVE=PEET COMPANY. 



I. 

inaccuracies in the BOARD'S STATEMENT OF THE FACTS. 

In this portion of our brief we call attention to in- 
accuracies in the Board's Statement of the Facts 



which result from misstatements of the record or 
from reliance on only part of the record, or both. 

(a) At page 6 of the Board's brief, the following 
appears : 

''Dissatisfaction with the representation ac- 
corded them by the C.I.O. had been brewing 
among the employees for about six months l)efore 
the extension of the closed-shop agreement." 

This statement is inaccurate because it ignores part 
of the record. The Board fails to state that there is 
nothing in the record to indicate that the Petitioner 
learned of this alleged dissatisfaction prior to the 
time that the telegrams, which are in evidence as the 
Board's Exhibits 5 and 6, were dispatched and re- 
ceived. This statement, set forth as it is mthout ex- 
planation, could give rise to the inference that the 
employer had knowledge of such dissatisfaction prior 
to the time above mentioned. 

(b) At page 6 of the Board's brief, the following 
is stated: 

"On July 20, 1945, four days before the execu- 
tion of the extension of the collective agreement. 
Steward Marshall in a conversation with B. W. 
Railey, the employer's ^dee-president, asked that 
the five stewards l)e present when the extension 
was signed hecmise of impending lahor froithles 
at the plant due to the employees' unrest.'* 
(Italics ours.) 

The foregoing is a misstatement of the record. The 
record is clear that Steward Marshall did not tell Mr. 
Railey that the five stewards desired to be present 



when the extension was signed ''because of impending 
labor troubles at the plant due to the employees' un- 
rest." This is what Mr. Marshall said: 

''I asked him if the contract of the Union was 
to be signed that the stewards of Colgate-Palm- 
olive-Peet be present, and he asked me why, and 
I said that we expected some trouble to rise at 
that time. And lie said he would." (R. 188-189.) 

This is a far cry from saying that there were *' im- 
pending labor troubles at the plant due to the em- 
ployees' unrest." 

It is evident that this is another effort on the part 
of the Uoard to Ining home knowledge to the Peti- 
tioner of employee unrest prior to the time of the 
transmittal and receipt of the telegrams, and prior to 
the occurrence of the strike, notwithstanding the fact 
that there is nothing in the record to sustain such a 
contention. 

(c) At page 9 of the Board's brief, there is set 
forth a warning bulletin issued by the C.I.O. at the 
plant, and the Board fails to mention that there is no 
evidence that the Petitioner had knowledge of this 
notice or its contents. In setting forth this notice 
without this explanation, the Board again attempts to 
give the impression that the Petitioner knew, before 
the discharge of the four Committeemen, of the fact 
that the C'lO had threatened those who attended the 
meeting with loss of meml)ership and employment. 

(d) At ]jages 11 and 12 of the Boaj-d's l^rief, the 
Board gives its version of the interview l^etween the 
employer's representative, the CIO officials and the 



four Committeemen, ))iit renders it totally inaccurate 
by stating in connection therewith only a part of what 
appears in the record. The Board places emphasis 
on part of a sentence carefully culled from the record. 
The Board states: 

''Vice-President Railey in his testimony agreed 
that 'it became quite apparent as this conversa- 
tion took place that there was a schism developing 
in the ranks of the CIO'." 

The record is as follows: 

"Q. Well, it became apparent as this conver- 
sation took place that there was a schism de- 
veloping in the ranks of the CIO, of the ILWU, 
did it not, at the plant? 

A. It certainly was, at least between the CIO 
and certain individuals. Whether it was, what 
percentage * * *". (Italics ours.) 

(R. 545-546.) 

The Board not only has indulged in the culling to 
which we have called attention ))ut has also failed to 
make any mention of the actual substance of the ex- 
change between CIO officer Lynden and Committee- 
man Sherman, and, for this reason, it will do no harm 
to restate a portion of the statement made by Mr. 
Lynden, as testified to ])y Mr. Railey: 

"A. I don't know what is the right word to 
use for it. As I say, they were reminded of their 
oath, and of course, Mr. Sherman, who was speak- 
ing for the negotiating committee, accused the 
Union of failure to get increases for the men and 
for the people working there. And Mr. Lynden 
for the Union did ])ear down to the extent that 



they had taken an oath, and they had failed to 
observe it, and he pointed ont what happened to 
a traitor for the United States, and they were a 
traitor to their Union, that they had the right to 
disciphne their people. In fact, he said — this was 
when the ivar ivas still on — he said they had many 
times been called upon to discipline people, keep 
them workiiuj. And he said even in the ship- 
yards they had been called upon to discipline 
people outside of working hours who were in- 
clined to drive fast, or drink, or something like 
that, to try to keep them working, because the 
government said, 'Unless you straighten your 
man out he can't work here.' And it was a de- 
fense of the C.I.O. by Mr. Lynden, naturally, and 
their policies, and resentment on the part of Mr. 
Sherman, w^ho was a former Business Agent, and 
whether he was disappointed or what I couldn't 
say, but at any rate, he was obviously not in 
sympathy with C.I.O." (Italics ours.) 
(R.545.) 

(e) At page 12 of the Board's lu'ief, mention is 
made of the bulletin issued by the C.I.O. warning 
against participation in an illegal strike. This is an- 
other example of careful culling on the part of the 
Board. The complete text of this bulletin is set forth 
at page 44 of Petitioner's opening brief and an ex- 
amination thereof reveals that it is in substance a 
warning againgst aligning with the "unscrupulous 
people who are attempting to promote strike action 
at this plant." This is a case of deliberate mis- 
description for the purpose of creating the impression 
that this was solely a threat of loss of jobs. 



II. 

INACCURACIES IN THE BOARD S STATEMENT OF THE 
FACTS IN ITS ARGUMENT. 

In its argument on the facts, at pages 47 and 48 of 
its brief, the Board states : 

''Finally, Labor Relations Director Wood ad- 
mitted at the healing, without ynakinci any differ- 
entiation among the various groups of discharges 
c0id refusals to reinstate, that he thought one of 
the reasons for the C.I.O.'s action was the anti- 
C.I.O. activity of the A.F.L. adherents." (Italics 
ours.) 

In making this statement, the Board has failed to 
note that Mr. Wood, in failing to make a ''differentia- 
tion" between groups of employees, properly did so 
because he was answering a series of questions relat- 
ing to the group of eighteen who were discharged on 
or about September 1, 1945, and that he was in no way 
referring to employees discharged on prior occasions. 
In this connection, the attention of the Court is called 
to what appears in the record, pages 732-737, inclusive. 

The Court will note that this alleged failure to make 
a differentiation between the discharges of various 
groups by Mr. Wood is one of the keystones to the 
Board's argument that the Petitioner knew of the 
CIO's alleged discriminatory intent when it dis- 
charged and refused reinstatement to the stewards 
and the committeemen. It is submitted, therefore, 
that the Board cannot rely on this portion of the 
record to support its argument. 



(b) In attempting to change the ])lain meaning 
of the telegrams which are in evidence as the Board's 
Exhibits 5 and 6, the Board argues as follows: 

''Moreover, the suggested construction glosses 
over the phrase reading 'severed relations with 
I.L.W.U.-6 as collective hariiaining agent.' 
(Italics supplied.) This is the key to the inter- 
pretation of the telegram and indicates the mean- 
ing which was ascribed to it by all, including the 
employer and the C.I.O. Its purport and intent, 
and the emploj^er so understood it, was to express 
the desire of a majority of the employees to re- 
place the C.I.O. as bargaining representative. 
As explained by Committeeman Sherman in his 
testimony: 'It was not the intent of the telegram 
to segregate individuals as discontinuing affilia- 
tions with the ('.I.e. The intent of the telegram 
was that we were discontinuing the bargaining 
agency, forming another group.' " (Board's 
Brief, page 53.) 

In making this argument, the Board fails to note 
that the Trial Examiner ruled that the Petitioner 
was not bound by the construction which the witness 
Sherman i)laced upon the telegrams, and that the 
Board affirmed this ruHng. (R. 399-401; (38.) 

The Petitioner not being ])ound by the witness's 
construction of the meaning and intent of the tele- 
grams, it is clear that the Petitioner is entitled in 
this proceeding to have them considered in accordance 
with their plain and ordinary meaning. This being 
so, the telegrams are evidence of the fact that certain 
of Petitioner's employees had withdrawn from the 
CIO for every purpose and that the contention that 



tliese telegrams were iiitended merely as a notification 
of dual unionism by the employees cannot stand. 

(c) In attempting to luillify the eifect and sig- 
nificance of the telegrams announcing the emjiloyees' 
withdrawal from the CIO, the Board argues as fol- 
lows: 

''The Board correctly concluded (R. I, 78, 
n. 8) : 'As for the complainants' withdrawal 
from the C.I.O., which would ordinarily entitle 
the [employer] to discharge them in view of the 
closed-shop contract, it will be observed that the 
C.I.O. did not acce])t theii- withdrawals nor is 
there any evidence that the [employer] dis- 
charged them or rejected the reinstatement ap- 
plication of the stewards and the committeemen 
for that reason. On the conti'ary, tlie [em- 
ployer's] answer and evidence show beyond dis- 
pute that the [employer] acted because of the 
complainants' suspension by the C.I.O. pending 
determination of charges of anti-C.I.O. acti^dty, 
and that the attempted withdrawals })layed no 
part therein. Apparently the significance of the 
^^withdrawaW occurred to the [employer] for 
the first time in its brief to the Trial Examiner 
after the close of the hearing/ The employer's 
belated effort to imbue this inartistically drawn 
telegram with significance which it does not pos- 
sess injects into the proceedings an issue which 
does not exist." (Board's Brief, pp. 53-54.) 
(Italics ours.) 

The statement that the significance of the ''with- 
drawals" occurred to the "employer" for the first 
time in its brief and that any argument thereon is 
an after-thought is a palpable mistatement of the 



record which has already been called to the Board's 
attention. (Petitioner's Motion to Reconsider, p. 30; 
Document No. 16, listed in the Board's Certificate, R. 
88.) The following taken from the record definitely 
shows that petitioner's contention with respect to the 
withdrawal of employees is not an af ter-thonght : 

"Mr. Hecht. Mr. Examiner, before the ques- 
tion is answered I would like to object to any 
more statements as to change of unions. It is 
obvious Exhibits 5 and 6 show all these people 
intended to change unions, and, as a matter of 
fact, changed unions by reason of these wires, at 
least, severed their relations, and whatever they 
said later on as to the changed unions is not ma- 
terial here." (R. Vol. II, p. 491.) 

In addition, the record shows that at the close of 
the Board's case, coimsel for the C.I.O. made a mo- 
tion to dismiss the proceeding on the ground that the 
employees had "withdrawn" from the contracting 
Union. (R. 664.) Under such circumstances, the con- 
tention that the Petitioner's argument is an "after- 
thought" cannot stand. 



III. 

THE BOARD PERSISTS IN DISTORTING THE RECORD 
THROUGH INVALID INFERENCES. 

In the Petitioner's opening brief, attention was 
called to the fact that in order to bolster its case, the 
Board relied on invalid inferences. (Petitioner's 
Brief, pp. 95-98: 105; 111-118.) The Board, although 
it does not dispute the validity of the legal objections 



10 



raised by Petitioner against findings based on invalid 
and prohibited inferences, is not daunted and repeats 
this performance in its Inief. Thus, we quote there- 
from the following statements: 

1. "The Board concluded that the employer 
would not have authorized so important au inter- 
ruption in the plant's operations without ascer- 
taining the purpose of the meeting." (Board's 
Brief, p. 7.) 

2. "That so important an interruption in pro- 
duction, apparently unprecedented, would be au- 
thorized to facilitate an employees' meeting with- 
out managerial ascertainmeut of its purpose is, 
to say the least, highly unlikely." (Board's brief, 
p. 44.) 

3. "Because of the Board's practice promptly 
to inform persons of charges filed against them, 
the Board inferred that the employer was ap- 
prised of this charge by August 17, 1945." 
(Board's Brief, p. 15.) 

With respect to items 1 and 2, we have already 
pointed out that the Board's counsel could have elicited 
direct testimony, had he so desired, as to whether the 
Petitioner was told or had ascertained the permissive 
anti-CIO purpose of the meeting. As to item 3, 
which is a new thought, it can also be pointed out 
that the Board cannot rely on inference because it is 
patent that the Board's employees in its San Fran- 
cisco office were available to testify as to whether or 
not the Petitiouer was promptly infoimed in accord- 
ance with Board practice as to the charges lodged 
against it. Under such circumstances, on the author- 



11 

ity of Galloway v. United States (1943), 319 U.S. 
372, 87 L.Ed. 1458, the Board cannot be permitted to 
rely on inferences or on its "expertness" to sustain 
these findings. 



IV. 

THE BOARD MISCONCEIVES PETITIONER'S ARGUMENT 
CHALLENGING THE SOUNDNESS OF THIS COURT'S AP- 
PROVAL OF THE RUTLAND COURT DOCTRINE IN THE 
LOCAL 2880 CASE. 

The Board contends tliat our argument challenging 
the soundness of the doctrine announced in Matter of 
Rutland Court Owners, 44 N.L.R.B. 587, is invalid 
because we have failed to distinguish l^etween the 
Board's inability, under the Wagner Act, to reach the 
contracting union's independent ivrong-doinfj and the 
employer's answerability under said Act, for his 
wrong-doing in acceding to the request for the dis- 
charge of employees because of activity on behalf of 
a rival unioii. (Board's Brief, p]). 28; 33-36.) 

The key to the Board's misconception of our argu- 
ment lies in the charge that a contracting union is 
guilty of ''wrong doing" and "wrongful acts" in 
demanding and obtaining, under the terms of a closed- 
shop contract, the discharge of employees because of 
their activity on l)ehalf of a rival union. Unless such 
alleged "wrong doing" is premised or postulated, it 
is a logical and practical absurdity to say that the 
Board can interfere with, suspend or j^reveut the 
performance of an admittedly valid contract through 



12 



orders directed solely at the employer. It must be 
remembered that such a contract is the property of 
the contracting union (31. d- M. Wood Working Co. v. 
N.L.B.B. (1939), 101 Fed. (2d) 938), and that the 
practical effect of orders, such as the one issued in 
this case, is to suspend the operation of the closed 
shop provisions of the contract which are intended 
to be for the direct ])enefit of the contracting imion. 
It also must be remembered that the portions of the 
Board's order requiring the reinstatement of the dis- 
charged employees effects a violation of this contract, 
l^ecause compliance therewith will result in the em- 
ployment by Petitioner of persons not in good stand- 
ing with the contracting union. The effect of such 
reinstatement would, therefore, ])e to deprive the CIO, 
unless it be guilty of "wrong-doing", of property 
without due process of law. 

That such wrong-doing is essential to the validity 
of the Board's doctrine is borne out by the fact that 
this Court's approval thereof in Local 2880, etc. v. 
N.L.B.B. (1946), 158 Fed. (2d) 365, is premised on 
the following proposition: 

A labor organization which so coerces an employee 
as to cause him to exercise the rights guaranteed by 
Section 7 of the Wagner Act in terrorem of discharge 
is ineligible to become or remain a party to a closed 
shop contract, and a discharge by the employer pur- 
suant to a closed shop contract vitiated by the in- 
eligibility of the coercing union, is assistance of the 
type defined by the Act as an unfair ]a])or practice. 



13 



In other words, this Court has held that a closed 
shop contract is destroyed because of the contracting 
union's "wrongful" acts. 

It is submitted that until the passage of the Taft- 
Hartley Act, it was generally held that a contracting 
union was not guilty of wrongful conduct in securing 
the discharge of employees because of activity on lie- 
half of a riAal union, and that there was nothing in 
the Wagner Act proscri])ing or outlamng such con- 
duct. In support of the first In^anch of the foregoing 
contention, we refer the Court to Sections 810 and 811 
of the ''Restatement of the Law of Torts". In sup- 
])ort of the second branch of this contention, we sul)- 
mit that the Board admits tliat there was nothing in 
the Wagner Act wliich made illegal or prohibited 
such activity on the part of the contracting union. 
In Matter of Lewis Meier d- Company (1947), 73 
N.L.R.B. 520, at 523, the Board said : 

"Moreover, it appears from the legislative 
history of the Act that Congress rejected the 
concept that labor organizations should be made 
amenable to Section 8 thereof. The respective 
committee reports to both the Senate and the 
House of Representatives mention proposals for 
prohibiting lal^or organizations, as Avell as em- 
ployers, from engaging in acti\'ities defined in 
Section 8 as unfair labor practices. Indeed, at- 
tention was explicitly called to the possibility of 
arbitrary use of the closed shop hy lahor organi- 
zations, and specific proposals tvere made for its 
avoidance. Congress, however, refused to include 
any of these proposals in the Act as written/' 
(Italics ours.) 



14 



Since it is plain that the contracting union has not 
been guilty of any wrongful conduct in exercising its 
rights under a closed shop contract, it is submitted 
that it is impossible to contend that such a contract is 
imenforceable or that the operation thereof may be 
suspended by Board order. Therefore, it must be 
granted that the employer is legally unable to refuse 
compliance with such a contract and that it is un- 
just to exact penalties from it because it has been 
comj^elled to perform a legal obligation. 



V. 

THE BOARD'S CONTENTIONS THAT ITS DECISION DOES NOT 
REQUIRE THE PETITIONER TO ASSUME THE ROLE OF 
JUDGE AND INQUISITOR ARE CONTRADICTED BY THE 
CONTENTS OF ITS BRIEF AND BY ITS DECISIONS. 

The Board's contention that its decision does not 
j)lace the employer in the role of judge is untenable. 
The Petitioner in this case is called upon to '' 'dis- 
tinguish,' 'interpret,' 'explain,' 'reconcile,' often with 
a finesse that would have delighted the angelic and 
subtle Doctors of the Middle Ages or the rabbinical 
pundits of Sora and Pumbeditha."' In proof of this, 
we offei' for the Court's consideration the contentions 
made by the Board, at pages 51-61 of its brief, and 
in j)articular to the Board's tortured argument with 
respect to the language contained in the telegrams, 
which are in e^adence as Board's Exhibits 5 and 6, 



i"The Good Judge of Chateau-Thierry", 10 Cal. Law Rev. 300, 
at 305. 



15 



and to the languag'e of the original charge filed with 
the Board. 

On the sii])ject whether an employer is required to 
act as an inquisitor or investigator, the Board con- 
tends : 

"Nor does the Board's decision, as the em- 
ployer appears correlatively to contend, place 
upon the employer an implicit burden to seek 
out information. An employer is not required 
lief ore complying with a discharge demand under 
a closed-shop agreement to conduct an investiga- 
tion, to delve into the union's books and policies, 
or to police the union's conduct of its internal 
affairs."' (Board's Brief, p. 38.) 

The answer to this is that the Board expressly 
places on the emjiloyer, in situations similar to that 
involved in this case, the ])urden of seeking out in- 
formation and requires him to delve into a union's 
conduct of its internal aifai]"s. In proof of this, we 
quote from two decisions of the Board. 

"For, although Halderman was thus admittedly 
aware that the discontent among his co-workers 
was due, in part at least, to Clark's rival union 
membership, and although, according to Nichols' 
testimony, Halderman asked for 'a little more 
proof of why the ]:)oys were refusing to work 
with (Clark) before he * * * discharged' him, 
it failed to make such a reasonable investigatio)! 
of the facts as the circumstances of the case re- 
qaired. * * * Significantly there is no evidence 
that the respondent pursued the inquiry any far- 
ther or that Halderman inquired among employ- 



16 



ees of the disgruntled crew." (Italics ours.) 
Matter of Pillshnry Mills, Inc. (August, 1947), 
74 N.L.R.B. 1113, at 1116. 

"We find, therefore, that the respoudent knew 
at the time of the discliarge that these men would 
not have been expelled frcjm the Union had it 
not been for this activity. Certainly, it made no 
effort to determine from the CIO the extent, if 
any, to which dual unionism^ was corisidered in 
determininci the penalty." (Italics ours.) Matter 
of Durasteel Company (May, 1947), 73 N.1..R.B. 
941, at 945. 

In connection with the foregoing, it should be borne 
in mind that the Boai'd i-ecjuires not "perplexity" or 
"incertitude" but "knowledge" with respect to the 
contracting miion's motivation before ai)pMng the 
principle of the Rutland Court case.-' 

On the other hand, the Labor Management Act, 
1947, requires a less strict standard to be adhered to 
in cases where a discharge is sought because of non- 
membership in a labor organization. The proviso of 
Section 8(3) of the Labor Management Act, 1947, re- 
cites that no employer shall justify any discrimina- 
tion against an employee "if he has reasonable 
(/rounds for ])elieving that membership was denied or 
terminated for reasons other than the failure of the 
employee to tender the periodic dues and initiation 
fees uniformly required as a condition of acquiring 



-Matter of Spicer Manufnctumuf Corporation (1946), 17 

N.L.R.B. 41 ; 
Matter of Diamond T Motar Car Company (1945), 64 

N.L.R.B. 1225; 
Board's brief in Local 2880, etc. v. N.L.R.B., pp. 22, 24. 



17 



or retaining membershij)." There is a vast distinc- 
tion between '' knowledge" and "reasonable belief". 
"Knowledge" connotes a more certain and definite 
mental attitnde than ''reasonable belief".^ 

Accordingly, the standard set ii]) T)y Congress in 
the Labor Management Act, 1947, does not reqnire 
an employer to assume the role of a judge or an in- 
quisitor, as does the standard set up by the Board 
and for this reason, it is resi)ectfully submitted that 
Congress, in amending the National Labor Relations 
Act, has expressly determined that an employer sliall 
not be subjected to the Ijurdensome tasks and respon- 
sibilities which the Board has sought to impose in 
cases of this type. 



VI. 

THE BOARD S CONSTRUCTION OF A CLOSED SHOP AGREE- 
MENT IS NOT CONSISTENT WITH CALIFORNIA LOCAL 
LAW AND THE BOARD'S INTERPRETATION CANNOT BE 
PERMITTED TO OVERRIDE LOCAL LAW. 

The Board argues that under California law, a re- 
quest for the discharge of employees, who would de- 
stroy the contracting union through acti^dty on behalf 
of a rival union, is illegal and discriminatory conduct. 
(Board's Brief, pp. 64-65. ) Such an argument is un- 
tenable and does not find support in any of the Cali- 
fornia cases cited by the Board. 

The Board also argues that assuming California 
law permits conduct inconsistent with its interpreta- 



^State V. Miller (1937), 193 S.E. 388, 212 N.C. 361. 



18 



tioii of the Wa.i^ner Act, the local law must yield to 
the Board's legislation. (Board's Brief, pp. 65-66.) 
This argument is a reiteration of the Board's con- 
tention vdth respect to the exclusive nature of the 
Wagner Act and its right to administer it Avithout 
regard to other laws, whether Federal or State, and 
its asserted right to disregard the consequences of its 
decisions. This insistence upon exclusiveness and in- 
dependence in the administration of the AVagner Act 
has involved the Board in severe collisions with the 
Courts^ and in at least two imi)ortant cases, the 
Board's attempt to override all other laws has been 
effectively frustrated. We have in mind the cases of 
N.L.R.B. V. Fansteel Mctallurffical Corporation 
(1939), 306 U. S. 240, 83 L. Ed. 627, and N.L.R.B. 
V. Southern Steamship Co. (1942), 316 U. S. 31, 86 
\j. Ed. 1246. In the last cited case, the Supreme Court 
lejected the Board's view that sailors who had mu- 
tinied, notwithstanding the illegality of their actions, 
could be directed to be reinstated with back pay upon 
a finding that their employer had discriminated 
against them in violation of the Wagner Act. In 
rejecting the Board's decision, the Supreme Court 
said: 

"It is sufficient for this case to observe that the 
Board has not been connnissioned to effectuate 
the policies of the I^abor Relations Act so single- 
mindedly that it may wholly ignore other and 
equally important Congressional objectives. Fre- 
quently the entire scojx^ of Congressional pur- 



^"A Labor Policv for America", Teller (Baker, Voorh is & Co. 
1945), p. 38. 



19 



pose calls for carei'ul aecominodation of one 
statutory scheme to another, and it is not too 
much to demand of an administrative body that 
it undertake this accommodation witJwiit exces- 
sive emphasis upon its inwiecfiate task." (Italics 
ours.) {Souther )} Stecnnship Co. v. National 
Labor Relations Board, 310 U. S. 46, 86 L. Ed. 
1259.) 

The foregoing admonition given to the Board by 
the Supreme Court suffices to establish that the Board 
is not empowered to deprive a union which has not 
committed any wrongful or illegal act of its property 
rights in violation of! the Fifth Amendment to the 
Federal Constitution. 



VII. 



LEGAL PROPOSITIONS ADVANCED IN PETITIONER'S BRIEF 
WHICH THE BOARD HAS CONCEDED BY ITS FAILURE TO 
COMBAT THEM. 

Several legal propositions set forth in Petitioner's 
b]'ief which establish the illegality of the Board's 
decision and order have not been rebutted by the 
Board and, in some instances, have not even been men- 
tioned and are, we submit for this reason, conceded to 
be correct by the Board. 

These legal propositions are the following: 
(a) It is no defense to the performance of a con- 
tract that the obhgor knows tl'at the agreement or its 
performance might aid the obligee to violate the law 
(Petitioner's Brief, pp. 78-80). 



20 



(b) All act lawful in itself is not converted by a 
malicious or bad motive into an unlawful act (Peti- 
tioner's Opening- F3rief, i)p. 87-91). 

(c) The Board's conclusionary finding that Peti- 
tioner made no bona fide effort to evaluate the evi- 
dence is based on an invalid presumption, disregards a 
valid presumption and is contrary to the record (Peti- 
tioner's Opening Brief, pp. 111-120). 

Dated, San Francisco, California, 
September 27, 1948. 

Respectfully submitted, 

Philip S. Ehrlich, 
Bartley C. Crum, 
R. J. Hecht, 
Attorneys for Petitioner ^ 
C olgate-PalmoUve-Peet Company. 



No. 11,514 

IN THE 

United States Court of Appeals 

For the Ninth Circuit 



Colgate-Palmoltve-Peet Company, 

Petition er, 

vs. 

National Labor Relations Board, 

B-espondent, 
and 

International Chemical Workers 
Union, A.F.L., et al., 

Intervenorsy 
and 

Warehouse Union Local 6, Inter- 
national Longshoremen's & Ware- 
housemen's Union (CIO), 

IntervenoTy 
and 

National Labor Relations Board, 

Petitioner, 

vs. 

Colgate-Palmolive-Peet Company, 

Respondent. 



PETITION FOR A REHEARING OF 
COLGATE=PALMOLIVE=PEET COMPANY. 



Philip S. Ehrlich, 
Bartley C. Crum, 
R. J. Hecht, 

2002 Buss Building, San Francisco 4, California, 

I Attorneys for Petitioner, 
^ i949 Colgute-PalmoUve-Peet Company. 



FILEO 



PAUL P, O'BHIEm.N. 

-,. SUM 



Subject Index 



I. Page 

The Labor Management Act, 1947, and tlie Administrative 
Procedure Act require that tJio findings of the Board be 
sustained by substantial evidence on the record considered 
as a whole, and that the reviewing court shall consider the 
whole record in determining whether the findings of the 
Board are supported by substantial evidence. The court 
did not, in the instant ease, consider the whole record. ... 4 

II. 

The court was required to decide all the relevant questions 
of law presented, but did not do so, and in this the court 
erred 13 

(a) Whether the CIO's lawful act of suspending the em- 
ployees who participated in the strike was converted 
by its alleged malicious or bad motives into an unlaw- 
ful act? 14 

(b) Whether the Board's findings that petitioner had 
"knowledge" of its employees' anti-CIO activity when 
it discharged the first two groups of employees are 
based on invalid and prohibited inferences and should 

be disregarded ? 16 

(c) Whether the finding of the Board that the petitioner 
made no bona fide effort to evaluate the evidence 
before it, is invalid because it is based on the equally 
invalid presumption that the petitioner knew of the 
Board's view of the law? 16 



Table of Authorities Cited 



Cases Pages 

Aluminum Co. v. N.L.R.B. (1946), 159 Fed. (2d) 523 2 

Galloway v. United States, 319 U. S. 373, 87 I;. Ed. 1458.. 16 

Lewis Meier & Co. v. N.L.R.B. (1947), 21 L.R.R.M. 2093, 13 
Labor Cases 72 2 

Local 2880 v. N.L.R.B. (1946), 158 Fed. (2d) 365, certiorari 
granted 331 U. S. 798, certiorari dismissed on motion of 
petitioner, 332 U. S. 845 2 

Matter of Rutland Court Owners, 44 N.L.R.B. 587, 46 

N.L.R.B. 1040 2 

Millslagle v. Olson (1942, CCA. 10), 128 Fed. (2d) 1015 3 

National Labor Relations Board v. Union Pacific Stages 
(1938, CCA. 9), 99 F. (2d) 153 5 

N.L.R.B. V. Bradford Dyeing Corporation, 310 Vj. S. 318, 
84 L. Ed. 1226 6 

N.L.R.B. V. WateT-man Steamship Corporation, 309 U. S. 
206, 84 L. Ed. 704 6 

Statutes 

Administrative Procedure Act : 

5 U.S.C.A., Sections 1001-1011 6, 10, 11, 12, 13, 16 

Labor Management Act, 1947 : 

29 U.S.C.A., Sections 141-197 6 



Miscellaneous 

Cardozo, The Nature of the Judicial Process, p. 126 19 

Professor Dickinson, Federal Administrative Procedure Act, 
and the Administrative Agencies, Proceedings of an in- 
stitute conducted by the New York University School 
of Law: 

pages 584-585 14 

pages 586-589 10 

pages 591-592 12 

Senate Report 105 on Labor Management Act, 1947, 80th 
Congress, pp. 26, 27 11 

Works of Jeremy Bentham, Volume 5. p. 235 18, 19 



No. 11,514 

IN THE 



United States Court of Appeals 

For the Ninth Circuit 



Colgate-Palmolive-Peet Company, 

Petitioner, 

vs. 

National Labor Relations Board, 

Respondent, 
and 
International Chemical Workers 
Union, A.P.L., et al., 

Intervenors, 
and 
Warehouse Union Local 6, Inter- 
national Longshoremen's & Ware- 
housemen's Union (CIO), 

Intervenor, 
and 

National Labor Relations Board, 

Petitioner, 

vs. 

Colgate-Palmolive-Peet Company, 

Respondent. 



PETITION FOR A REHEARING OF 
COLGATE=PALMOLIVE=PEET COMPANY. 



To the Honorable William Denman, Presiding Judge, 
and to the Honoi^ahle Associate Judges of the 
United States Court of Appeals for the Ninth 
Circuit: 

This Honorable Court, by its decision and opinion 
filed in the above entitled cause on January 13, 1949, 
has, for the second time, affirmed the doctrine an- 
nounced and applied by the National Labor Relations 
Board in the flatter of Rutland Court Oivners, 44 
N.L.R.B. 587, 46 N.L.R.B. 1040. The Petitioner 
knows, therefore, that it would be impertinent and 
presumptuous to ai'gue again the question of the 
validity of this doctrine and to petition for a re- 
hearing on any contention directed to this phase of 
the matter. 

The petitioner is also aware of the fact that on 
this branch of the case, the decisions of this Court 
are in clear conflict vAt^ the decisions of the Court 
of Appeals, for the Seventh Circuit,^ and, further, 
that the Supreme Court agreed to review the first 
decision of this Court on this question.- In addition, 
the Petitioner realizes that a decision by the Supreme 
Court on this question of law would be determinative 
of all other issues involved in this case. All of these 
factors would seem clearly to indicate that the Peti- 
tioner should not further importune this Court for the 



^Aluminum Co. v. N.L.R.B. (1946), 359 Fed.(2d) 523; Lewis 
Meier & Co. v. N.L.R.B. (1947). 21 L.E.R.M. 2093, 13 Labor 
Cases, 72, 249. 

'^Local 2880 v. N.L.R.B. (1946), 158 Fed. (2d) 365; Certiorari 
granted 331 U. S. 798, certiorari dismissed on motion of peti- 
tioner, 332 U.S. 845. 



relief it believes is due it, l)iit that it should take its 
grievance to our highest Court. However, the Peti- 
tioner is also aware of the fact that the review of 
its case by the Supreme Court is a matter of grace, 
not of right, and, further, that this Court could, with- 
out changing its position on the issue of law, clear it 
of the charge of bad faith which the Board has un- 
justly fastened upon it, and deliver it from an order 
which can be supported only on this unjustifiable 
charge. These last mentioned factors, considered in 
the light of what appears in the Court's opinion 
herein, has led the Petitioner to conclude that the 
filing by it of a petition for a rehearing would not be 
just a reargument of the issues determined by this 
opinion, but would, on the contrary, fulfil one of the 
primary purposes of all such petitions which is to 
call attention to material matters of law or fact in- 
advertently overlooked by the Court, as shown by its 
opinion.^ 

Accordingly, Petitioner respectfully calls attention 
to, and submits as reason for the granting of its peti- 
tion for a rehearing the followmg material matters 
of law and of fact inadvertently overlooked by the 
Court: 



mUUlagU V. Ohon (1942. CCA. 10), 128 Fod. (2d) lOlf). 



I. 

THE LABOR MANAGEMENT ACT, 1C47, AND THE ADMINIS- 
TRATIVE PROCEDURE ACT REQUIRE THAT THE FINDINGS 
OF THE BOARD BE SUSTAINED BY SUBSTANTIAL EVI- 
DENCE ON THE RECORD CONSIDERED AS A WHOLE, AND 
THAT THE REVIEWING COURT SHALL CONSIDER THE 
WHOLE RECORD IN DETERMINING WHETHER THE FIND- 
INGS OF THE BOARD ARE SUPPORTED BY SUBSTANTIAL 
EVIDENCE. THE COURT DID NOT. IN THE INSTANT CASE, 
CONSIDER THE WHOLE RECORD. 

The recital of facts contained in the opinion of the 
Coiu't is notable for its brevity, and omits all the facts 
which render the evidence proffered by the Board in 
support of its findings unsubstantial. We conclude 
from this, that the Court has searched the record 
solely to determine whether there is some cAddence 
to sustain the findings, and not for the purpose of 
determining whether on the wJwle record the Board's 
evidence remains substantial. This method of review, 
although it has been sanctioned sometimes in the past, 
does not conform to the existing law. This Court in 
so reviewing the record in this cause has thereby 
overlooked material matters of fact. Our reasons in 
support of this statement are hereinafter set forth. 

The Court states in its opinion that ''the evidence 
abundantly supports" the following findings of the 
Board : 

(a) That the CIO sought to use the closed shop 
contract for the purpose of punishing the in- 
surgents; and 

(b) That the Petitioner acceded to discharge- 
demands of the CIO, nntA\ithstanding it knew 



that the Union had suspended the men in reprisal 
for their activities in favor of the rival Union. 

The opinion thus discloses that the Court has found 
the findings of the Board to be supported by evidence 
solely because it has accepted only that part of the 
record cited by the Board and has entirely, although 
inadvertently, disregarded other convincing evidence 
contained therein which was cited by the Petitioner. 
We are of the opinion that it has always been the rule 
that findings of administrative agencies which are 
arrived at by accepting part of the evidence and 
totally disregarding other convincing evidence are not 
legally sufficient and not acceptable to the reviewnng 
Courts. 

''It is suggested that this court should accept 
the findings of the Board ; that contradictions, in- 
consistencies, and erroneous inferences are im- 
mune from criticism or attack by Section 10(e) 
of the Act, 49 Stat. 453, 29 U.S.C.A. paragraph 
160(e), Avhich j^rovides that 'the findings of the 
Board as to the facts, if supported by evidence, 
shall be conclusive.' But the courts have not 
construed this language as compelling the ac- 
ceptance of findings arrived at by accepting part 
of the evidence and totally disregarding other 
convincing evidence." 

National Labor ReUtions Board v. Union 
Pacific Stages (1938, CCA. 9), 99 F.(2d) 
153, at 177. 

It may be argued that the principle announced in 
the above quotation has been eroded by such decisions 



as N.L.R.B. v. Waterman Steamship Corporation, 
309 U.S. 206, 84 L. Ed. 704, and N.L.R.B. v. Bradford 
Dyeing Corporation, 310 U.S. 318, 84 L. Ed. 1226, and 
that the latitude of reviewing Courts in so far as 
administrative agencies are concerned, has been lim- 
ited b}^ the rules announced in these cases. However, 
even if that be conceded, the Administrative Proce- 
dure Act (5 U.S.C.A., Sees. 1001-1011), which went 
into effect on September 11, 1946, and the Labor Man- 
agement Act, 1947 (29 U.S.C.A., Sees. 141-197), which 
went into effect on June 23, 1947, have removed the 
limitations imposed upon reviewing Courts by the 
above mentioned cases. 

Section 10(e) of the Administrative Procedure Act 
provides, in part, as follows: 

''(the reviewing court shall) * * * hold unlaw- 
ful and set aside agency * * * findings, and con- 
clusions foimd to be * * * (5) unsupported by 
substantial evidence * * *. In making the fore- 
going determinations the court shall review the 
tuhole record or such portions thereof as may be 
cited by any party, * * *." (Italics supplied.) 
5 U.S.C.A., Sec. 1009 (e). 

The Labor Management Act, 1947, provides in part 
as follows: 

"The findings of the Board with respect to 
questions of fact if supported by sul^stantial evi- 
dence on the record considered as a whole shall 
be conclusive." (Italics supplied.) 

It is most clear that these two statutes require that 
before the findings of an administrative agency be 



accepted as conclusive, they must be sustained by the 
record as a whole and that the reviewing Court, in de- 
termining whether such findings are supported by 
substantial evidence, must consider the record as a 
whole and not only such parts of the record which 
sustain the contentions of the Board or some other 
administrative agency. 

That this Court failed to comply with the require- 
ments of the statute is made apparent when it is 
noted that the Court when it declared that the findings 
of the Court were abundantly supported by the evi- 
dence, failed to state or take notice of material facts 
which rendered less than substantial the evidence 
proffered by the Board. For example, on the issue 
of the illegality of the motivation of the CIO and of 
the Petitioner's knowledge thereof, the Court entirely 
overlooked the following material facts, among others : 

1. The resignation of all the discharged employees 
from the CIO. 

2. The participation of all the discharged em- 
ployees in a strike not authorized by the CIO. 

3. The undisputed right of the CIO to discipline 
the persons who participated in these actions. 

4. The admission by nine of the discharged em- 
ployees that they w^ere discharged because of their 
refusal to adhere to the established policies of the 
CIO. (R. 70; 71-72; 202-203; 258; 274; 296; 365-367; 
404-405; 420-421 ; 506-507; 92-93.) 

No one disputes the materiality and the relevance 
of these facts and yet the Court, without even men- 



8 



tioning them, dismisses their effect with the sweeping 
statement that, "the evidence abmidantly supports" 
the findings of the Board. 

The history and express language of these two stat- 
utes demonstrate that it was the intent of their 
draftsmen and of Congress to put an end to the 
practice by reviewing Courts of disposing of admin- 
istrative adjudications by just stating that substantial 
evidence supports the findings of the agency without 
setting forth material facts which must render such 
e^ddencc unsubstantial. No clearer demonstration of 
the fact that Congress intended to change the for- 
mulae to be applied by Courts in reviewing adminis- 
trative adjudications is to be found than in the fol- 
lowing discussion of the Federal Administrative Pro- 
cedure Act by Professor Dickinson :^ 

"The revelant language is that the reviewing 
court, in making its detei'minations in the enumer- 
ated situations where it is their duty to set aside 
an administrative finding, * shall review the whole 
record or such portions thereof as may be cited by 
any party.' This language is to be read especially 
in connection with that part of the previous sen- 
tence which lays upon the court the duty of setting 
aside 'agency action, findings and conclusions 
* * * unsupported by substantial evidence'. These 
two parts of the statute when read together sum 
up into substantially the same result as that 
contained in the bill of the Acheson Committee 
minority which required the reviewing court to 
consider 'findings, inferences or conclusions of fact 
unsupported, upon the whole record, by substan- 



*Professor of Law, University of Pennsylvania Law School. 



tial evidence.' The intention and meaning of tliis 
language was in turn explained l^y the quotation 
from Dean Stason's testimon\^ at the Senate hear- 
ings, set forth at an earlier point in this paper. 
It there clearly appears that the purpose and 
intention of the third sentence of paragraph (e) 
of the judicial review section of the Administra- 
tive Procedure Act is to eliminate from judicial 
review of fact determinations not merely the 
scintilla rule but also that interpretation of the 
substantive evidence formula which would permit 
the reviewing court to examine only one side of 
the evidence. The purpose of the new provision, 
while not requiring the re^dewing court to weigh 
evidence and substitute its own judgment for 
that of the administrative agency, is to require 
it at least to look at the evidence on both sides 
and see whether the evidence in support of the 
administrative conclusion can fairly he regarded 
as siihstanfial iv the face of the evidence on the 
other side. This purpose was made explicit in the 
House Committee I'eport on the present bill, where 
the following language occurs : 

'The requirement of review upon ''the whole 
record" means that courts may not look only to 
the case presented by one party, since other 
evidence may weaken or even indisputably de- 
stroy that case.' 

Identical language occurs in the report of the 
Senate Committee. 

Aside from these and similar unmistakable 
expressions of legislative intent, it seems entirely 
clear that language which differs as widely as 
that contained in the last sentence of paragraph 
(e) from the hitherto accepted formulae for fact 



10 



review would not have been used, and that there 
would have been no reason or excuse for using 
it in the statute, if it was the intention of Con- 
gress by this paragraph to make no change in 
existing law but merely to restate it. The existing 
formulae confine themselves to the requirement 
either that the finding of the administrative 
agency shall not be 'unsupported by evidence' 
or 'shall be supported by substantial evidence' 

The Administrative Procedure Act goes fur- 
ther. It does 7iot content itself with a mere re- 
statement of the ^substantial evidence' rule; it 
adds a novel requirement when it says that the 
reviewing court in determining whether or not a 
finding is supported by substantial evidence 
^ shall review the tvhole record or such po7'tions 
thereof as may be cited by any party'." (Italics 
supplied.) 

Federal Administrative Procedure Act; Pro- 
ceedings of an Institute conducted by the 
New York University School of Law, pp. 
586-589. 

The Congressional history of the Labor Manage- 
ment Act, 1947, also clearly indicates that it was the 
intent of Congress to conform the judicial review sec- 
tions of this statute to the corresponding sections of 
the Administrative Procedure Act. 

''Sections 10 (e) and 10 (f), relating to en- 
forcement and review in the various circuit courts 
of appeal and in the Supreme Court, contain no 
changes in existing law, except with regard to the 
weight given to findings of the Board by the 
reviewing tribunal. Under the present act, the 



11 



Board's findings of fact, if siijipoi'ted by evidence, 
are deemed to be conclusive. This has been con- 
strued by the Supreme Court as meaning 'sub- 
stantial evidence'. Nevertheless, there has been 
some dissatisfaction with what has been viewed 
as too great a tendency on the part of the courts 
not to disturb Board findings, even though they 
may ])e ]:)ased on questions of mixed law and 
fact * * *. Although considerable sentiment was 
expressed in committee for a rule which requires 
the courts to support Board orders, unless con- 
trary to the weight of the evidence, it was finally 
decided to conform the statute to the correspond- 
ing section of the Administrative Procedure Act 
where the substantial evidence test prevails. In 
order to clarify any ambiguity in that statute, 
however, the committee inserted the words 'ques- 
tions of fact as supported by substantial evidence 
on the record considered as a whole. * * *'."5 
Senate Report 105 on Labor Management Act, 
1947, 80th Congress, pp. 26, 27. 



^The following colloquy between Mr. Benjamin, distinguished 
writer on administrative law, and Arthur E. Vanderbilt, Chief 
Justice of the Supreme Court of New Jersey, and former Dean 
of the New York School of Law, and one of the members of the 
Acheson Committee which drafted the Federal Administrative 
Procedure Act, emphasizes the very important change wrought in 
the judicial review of agency action by the Federal Administrative 
Procedure Act : 

"Mr. Benjamin: The point that I wanted to make was one 
of New York local pride. I think, on this question of the 
whole record, that the New York Court of Appeals is entitled 
to priority, because it brought out the whole record substan- 
tial evidence doctrine— I believe, back in 1940, in the case of 
Stork Restaurant against Boland, about 282 N. Y. The opinion 
there is quite explicit but the argument in the Court of Ap- 
peals was even m.ore exi)Hcit and I thouglit it would be worth 
recounting veiy brielly, because it illustrates so well the scope 
of review about whieli Mr. Dickinscm was talking. 

That was an appeal by the State Labor Board to the Court 
of Appeals and Ralph Seward, Counsel for the Board, argued 



12 



We submit, in the liglit of the express language and 
the history of these statutes, that the Court erred, and 
that a hearing should be granted for the purpose 
of giving consideration to material facts overlooked by 
the Court in appraising the siihstmitiality of the evi- 
dence supporting the findings of the Board. 



first. After lie had been arguing 20 minutes or so, Judge 
Lehman said, 'Mr. Seward, you have recounted to us evidence 
in support of the Board's finding that appears to be substan- 
tial. I suggest that you now permit the respondent to argue, 
because the question for this court is whether, against the 
background of the respondent's evidence, your evidence re- 
mains substantial.' 

That was the scope Mr. Dickinson was advocating and it is 
my local pride that the Court of Appeals actually handed that 
down as doctrine six or seven years ago. 

Dean Vandervilt : I must confess as a member of the 
minority that I do not think any of the minority were aware 
of that decision. But I will say that when we were trying to 
draft what we called a concurring report (everyone in the 
law likes to find a plaintiff and a defendant so we promptly 
became a majority in the minority), we groped around for 
some phrase or group of words which would put an end to 
this mumbo-jumbo business of having a court say, 'we find 
substantial evidence', but Avithout saying anything of what 
they found on the other side. After four or five days of 
phrase seeking, we finally hit upon that one and it is cer- 
taintly very comforting to know that we have high precedent. 
I have a notion that we are going to need all the controlling 
and persuasive argument that can be found to prevent de- 
velopment of the other meaning". 
Discussion, during an institute on Federal Administrative Pro- 
cedure conducted hy the New York University School of Law; 
Federal Administrative Froccdnrc Act and the Administrative 
Agencies, pp. 591-592. 



13 



II. 

THE COURT WAS REQUIRED TO DECIDE ALL THE RELEVANT 
QUESTIONS OF LAW PRESENTED, BUT DID NOT DO SO, 
AND IN THIS THE COURT ERRED. 

The Federal Administrative Procedure Act dis- 
cussed in the foregoing section of this brief provides 
in part as follows: 

''So far as necessary to decision and where pre- 
sented the reviewing court shall decide all rele- 
vant questions of law, interpret constitutional 
and statutory provisions and determine the mean- 
ing or applicability of the tenns of any agency 
action/' (Italics supplied.) 
5 use A, Sec. 1009 (e). 

In our brief we presented for the Court's considera- 
tion many relevant questions of law, which assumed 
the validity of the Rutland Court Doctrine, but which 
cast great doubt on the validity of the Board's action 
in applying this doctrine to the facts of the instant 
case. These questions were not determined by the 
Court and the Court failed to pass on the validity of 
the Board's action, and in this the Court erred. 

''It is submitted that such a position on the part 
of the courts will henceforth be hard to square 
with the specific language of the first sentence 
of paragraph (e) of Section 10 of the Adminis- 
trative Procedure Act, if that sentence is given 
the effect which an objective reading of its words 
seems to require. The reviewing court is there 
not merely given the power, but the word 'shall' 
is placed under an obligation, not only to 'inter- 
pret constitutional and statutory provisions' but 
to 'decide all relevant questions of law'; and then 



14 



follow the additional words which impose on the 
reviewing court itself the further duty of de- 
termining 'the meaning or applicability of the 
terms of any agency action'. The explicitness of 
this additional language just quoted, coupled with 
its reference to 'the meaning of the terms' of 
agency action, would seem henceforth to require 
the court in a review proceeding to look for itself 
at even those technical questions, whether they 
are regarded as law or fact, which are frequently 
involved in the 'terms of agency action', and 
which the courts in recent years have tended to 
treat as more or less immune from judicial con- 
sideration." 
Federal Administrative Procedure Act, and the 
Administrative Agencies, Proceedings of an 
institute conducted hy the New York Uni- 
versity School of Law, pp. 584-585. 

The questions of law on which the Court failed to 
pass are set forth hereinafter: 

(a) Whether the CIO's lawful act of suspending- the employees 
who participated in the strike was converted by its alleged 
malicious or bad motives into an unlawful act? 

In our opening brief, pages 87 to 91, we argued 
that the CIO's lawful act of suspending and demand- 
ing the discharge of the employees who had partici- 
pated in the strike was not converted into an unlawful 
act by its alleged malicious motivation, and that under 
such circumstances, the Board had no right to apply 
herein the Rutland Court doctrine. The Court, how- 
ever, entirely overlooked this material matter of fact 
and law. 



15 



That this was a relevant question of law, which, in 
addition, involved a determination of the correctness 
of the Board's action is hardly open to question. In 
passing on this ver}^ important issue, the Trial Ex- 
aminer said: 

''Assuming-, for the moment, that the respondent 
believed that both factors prompted the C.I.O.'s 
request, the undersigned knows of no feasible 
method by which the respondent could determine 
which factor was the motivating one in the C.I.O.'s 
decision to invoke the closed shop provision of the 
contract." (R. 59.) 

And in the footnote appended to the foregoing 
quotation he says : 

''Or is the presence of an illegitimate motive 
alongside a legitimate one, sufficient, as the Board 
has frequently ruled where discharges absent a 
closed shop are concerned, to render a discharge 
violative of the Act? The undersigned does not 
believethat it is." (R. 59.) 

Commenting further on this point the Trial Ex- 
aminer says: 

"That the contracting Union might properly 
discipline members for participating in a strike 
called in violation of union policy, by suspending 
or expelling them, seems to the undersigned 
hardly open to question. A labor organization, 
no less than any other organization, cannot be 
denied the authority to compel compliance with 
the decisions of its membership. 'Good standing' 
in an organization implies something more than 
the mere payment of dues." (R. 63.) 



16 



The Court, like the Board, has entirely ignored 
and has failed to decide this very relevant question 
of law and fact involving the CIO's right to discipline 
and cause the discharge of employees who partici- 
pated in an illegal strike, notwithstanding its alleged 
malicious motivation, and in this the Court has failed 
to comply with the requirements of the Adminis- 
trative Procedure Act. 

(b) Whether the Board's findings that petitioner had "knowl- 
edge" of its employees' anti-CIO activity when it discharged 
the first two groups of employees, are based on invalid and 
prohibited inferences and should be disregarded? 

On pages 93 to 104, inclusive, of our brief, we 
argued that the Board's findings on the question of 
Petitioner's knowledge were invalid, and in addition, 
that, on the authority of Galloivay v. Vnited States, 
319 U. S. 373, 87 L. Ed. 1458, the Board was not per- 
mitted to rely on inferences when direct evidence as to 
the fact involved was available. The Board failed to 
make any answer to this argument, and the Court 
ignored and failed to decide this important and rele- 
vant question of law. 

(c) Whether the finding of the Board that the Petitioner made 
no bona fide effort to evaluate the evidence before it, is 
invalid because it is based on the equally invalid presump- 
tion that the petitioner knew of the Board's view of the 
law? 

The Board found it necessary to culminate its arbi- 
trary action in this proceeding by charging that the 
Petitioner had made '^no bona fide effort to evaluate 
all the evidence before it". (R. 79.) The Petitioner, 



17 

although it is a corporation, is not insensitive to the 
charge of bad faith which the Board has gratuitously 
fastened upon it. 

In our brief, pages 113 to 118, inclusive, we argued 
that as a matter of law this finding was invalid be- 
cause it was based on the equally invalid presumption 
that the Petitioner knew at the time of the events in 
question that the Board would cast upon it, after the 
fact, a duty to evaluate the evidence. Up to that time 
the announced rule of the Board had been, as stated 
by the Trial Examiner, that: 

'^In each such instance, however, the Board 
has required knowledge hy the employer, derived 
from information in its possession at the time it 
effectuated the discharge. This information has 
heretofore been of such a nature as not to require 
any interpretation of evidence, or any inde- 
pendent investigation on its part." (R. 63-64.) 
64.) 

In a footnote appended to the above quotation the 
Trial Examiner says: 

"In the Rutland court case, for example, the 
business agent of the A.F. of L., the contracting 
imion, called the employees into the office of the 
employer where both the employer and the union 
agent pressed them to state to which labor or- 
ganization they gave allegiance. When they an- 
swered that they preferred the CIO, the agent 
stated to the employer that the employees had 
'double-crossed' him and forthwith replaced them 
))y others. No reason other tlian their interest in 
the CIO was alleged. 



18 



In Portland Liimher Mills, the dischargee 
showed the employer the formal charge against 
him which stated that he had given 'aid and sup- 
port to a dual organization'.'- (R. 64.) 

From the foregoing it may be concluded that up to 
the time that this case was adjudicated the Petitioner 
was imder no duty to interpret or evaluate evidence, 
and, therefore, committed no actionable wrong in 
failing to comply with this duty, and the Board does 
not make any contention to the contrary. The Board 
does maintain, however, that the Petitioner has done 
something of which it disapproves and that for this 
reason the Petitioner must be punished. 

This approach to the problem is, of course, law- 
making in the guise of adjudication and not unlike 
the type of law making described by Bentham in 
''Truth V. Ashkurst; Or the Latv as it is, contrasted 
tvith tvhat it is said to he/' There, Bentham, speak- 
ing of certain common law judges, says: 

"It is the judges (as we have seen) that make 
the common law. Do you know how they make 
it? -lust as a man makes laws for his dog. When 
your dog does anything you want to break him 
of, you wait til he does it, and then beat him 
for it. This is the way you make laws for 
your dog: and this is the way the judges make 
laws for you and me. They won't tell a man 
beforehand what it is he should not do — they 
won't so much as allow of his being told: they 
lie by until he has done something which they 
say he should not have done, and then they hang 
him for it. What way, then, has any man of com- 



19 



ing at this dog-law? Only by watching their pro- 
ceedings: by observing in what cases they have 
hanged a man, and what cases they have sent him 
to jail, in what cases they have seized his goods, 
and so forth." 

Works of Jeremy Bentham, Vohime 5, p. 235. 

We hardly need say that this type of law making 
in the guise of adjudication by administrative agencies 
Avho are neither responsible nor responsive to the 
public will, is despotic and abominable. Unless such 
agency action is set aside by the reviewing Courts we 
will have come to the position where there are "no 
such things as rules or principles: there are only 
isolated dooms."® 

In oral argument counsel for the Board in response 
to a question by Judge Bone, said in substance, on 
the question of employer knowledge, that in certain 
instances the Board required independent investiga- 
tion by the employer of the Union motivation, — that 
in others it did not, — that the proMem was approached 
on a case to case basis. This makes it clear that the 
Board's definition of the law excludes rules or prin- 
ciples of general application or the equal and equi- 
table application thereof. We can say of this error, 
as does Mr. Justice Cardozo, that: 

"A definition of law which in effect denies the 
possibility of law since it denies the possibility 
of rules of general operation, must contain with- 
in itself the seeds of fallacy and error. ""^ 



eCardozo, The Nature of the Judicial Process, p. 126. 
^Cardozo, op. cit. pp. 126, 127. 



20 



That there is a purpose in the Board's adoption of, 
and application of this erroneous and fallacious defi- 
nition of law is unquestionable. The Board may there- 
by, as in the instant case, adjudicate as it pleases, 
without regard to rule or principle. It may in the face 
of overwhelming direct evidence rely on iuA'alid and 
prohibited inferences and presumptions to stigmatize 
litigants and deprive them of their property. The 
instant case furnishes a perfect example of the 
Board's method: The direct evidence in the record 
overwhelmingly pointed to lack of knowledge of the 
union's true motivation. The record, therefore, re- 
quired an affirmance of the Trial Examiner's findings, 
but the Board had determined to rule against the 
Petitioner. Accordingly, it invented solely for the 
purposes of this case, a " presiunption of knowledge" 
and a ''presumption of bad faith" to overcome the 
record and the presumption of good faith and fair 
dealing. 

The conclusions we have reached with reference to 
the Board's approach to this problem is not just the 
reaction of a disappointed litigant. In proof of this 
we submit for consideration the view which the editors 
of the Labor Relations Reporter took of the Board's 
treatment of this problem and of its action herein: 
"Notwithstanding more than a decade of admin- 
istrative and judicial interpretation of the Wag- 
ner Act, and notwithstanding its major impor- 
tance to both employers and unions, no reasonably 
certain answer, capable of advance application to 
different factual situations, can yet be found in 
the decisions to settle this question : 



21 



'When does a closed shop or membership-main- 
tenance contract protect an employer against re- 
instatement and back-pay orders if he comj^lies 
with the contracting union's demand for the 
discharge of an employee because of suspension 
or expulsion from the union?' 

Even the Board's earlier decisions, before the 
controversy assumed its current importance, re- 
vealed only shifting and differing answers from 
year to year. Some cases would hold that the 
contract insulated the employer from discrimina- 
tory discharge complaints; others just as posi- 
tively ruled that they did not. (Analysis, Oct. 29, 
1945) * * * 

It is the 'knowledge test' w^hich the present deci- 
sion expands. In effect, the present decision 
creates a presumption of knotvledge where it is 
found that the employer had information indi- 
cating that the motive of the contracting imion 
might have been reprisal against 'dual-unionists' 
at a time when the Board considered the closed- 
shop contract 'open' for a new determination of 
representatives, and 'made no bona fide effort to 
evaluate all the evidence before it.' 

The Board may, however, reach contrary results 
in applying the 'knotvledge' test, even ivhen some 
factors tend to indicate at least constructive 
knowledge. Thus in a recent case it was indicated 
that some of the supervisory employees were 
probably aware of the motivation of the contract- 
ing union, but the Board, by a vote of two-to-one, 
held that the facts were not such 'as to warrant 
a finding that the knowledge it possessed placed 
this employer under duty to inquire further as to 
the motivating factors in the expulsion by the 



22 

union of these employees.' (Spicer Mfg\ Corp., 
18 LRRM 1326.)" (Italics supplied.) 

Analysis, Sept. 23, 1946, 18 Labor Relations 
Reporter 85, pp. 86-87. 

We submit that the matter hereinabove discussed 
presents a relevant question of law which the Court 
should decide on rehearing contrary to the Board's 
contentions, otherwise we shall have truly I'eached 
the position where there "are no such things as rules 
or principles: there are only isolated dooms" . 

Dated, San Francisco, California, 
February 2, 1949. 

Respectfully submitted, 

Philip S. Ehrlich, 
Bartley C. Crum, 
R. J. Hecht, 

Attorneys for Petitioner, 
Colgate-Palmolive-Peet Company. 



Certificate of Counsel. 

I certify that in my judgment the within petition 
for a rehearing is well founded and that it is not 
interposed for delay. 

Dated, San Francisco, California, 
February 2, 1949. 

R. J. Hecht, 

Of Counsel for Petitioner, 
Colgate-Palmolive-Peet Company. 



No. 11524 
IN THE 



•'-' /9v^ 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



John S. Bleker, Jr., 



vs. 



United States of America, 



Appellant, 



Appellee. 



PETITION FOR REHEARING. 



Kenny and Cohn, 
Robert W. Kenny, 
Morris E. Cohn, 
Robert S. Morris, Jr., 
629 South Hill Street, Los Angeles 14, California, 
Attorneys for Appellant Bleker. 



Parker & Company, Law Printers, Los Angeles. Phone MA. 6-917L 



No. 11524 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



John S. Bleker, Jr., 

Appellant, 
vs. 

United States of America, 

Appellee. 



PETITION FOR REHEARING. 



To the Honorable William Denman, Chief Judge, and the 
Associate Judges of the United States Court of Ap- 
peals for the Ninth Circuit: 

Petitioner, the appellant, John S. Bleker, Jr., respect- 
fully urges this Honorable Court to grant him a rehear- 
ing upon the judgment on appeal filed May 26, 1949. 

I. 

Preliminary Statement. 

The appellant Bleker was acquitted of three of the four 
counts on which he was jointly indicted with two of his 
subordinates in the Marine Corps Post Exchange at Camp 
Pendleton. One of his co-defendants, Gleason, pleaded 
guilty to two counts and the other, Robinson, was found 
guilty on three. 



TOPICAL INDEX 

PAGE 
I. 

Preliminary statement 1 

II. 

The opinion of this court is confined to the naked question of the 
admissibihty of evidence and has not considered its harmful 
effect in the context of a disjiroved conspiracy 4 

III. 
This court was not justified in holding that appellant Bleker 
waived his objections by silence and, in any case, the preju- 
dicial effect could not have been removed 6 

Conclusion 7 



TABLE OF AUTHORITIES CITED 

Cases page 

Krulewitch v. United States, 93 L. Ed., Adv. Ops. 623 4, 5, 6 

Rules 

Rules of the United States Court of Appeals, Rule 25 7 



No. 11524 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



John S. Bleker, Jr., 

Appellant, 
vs. 

United States of America, 

Appellee. 



PETITION FOR REHEARING. 



To the Honorable William Denman, Chief Judge, and the 
Associate Judges of the United States Court of Ap- 
peals for the Ninth Circuit: 

Petitioner, the appellant, John S. Bleker, Jr., respect- 
fully urges this Honorable Court to grant him a rehear- 
ing upon the judgment on appeal filed May 26, 1949. 

I. 

Preliminary Statement. 

The appellant Bleker was acquitted of three of the four 
counts on which he was jointly indicted with two of his 
subordinates in the Marine Corps Post Exchange at Camp 
Pendleton. One of his co-defendants, Gleason, pleaded 
guilty to two counts and the other, Robinson, was found 
guilty on three. 



— 2— 

By this petition for rehearing Major Bleker is still 
trying to extricate himself from the original position in 
which he was placed by the joint indictment. His acquit- 
tal on the conspiracy count has indeed been an empty 
victory up to date. 

The appellant Bleker remains the forgotten man of this 
case. The trial transcript, the appeal briefs, even the 
opinion of this Court all reflect the principal concern of 
the jury and Court with the misdeeds of Robinson and 
Gleason. 

Thus, although he was acquitted of it, the smearing 
effects of the original conspiracy charge have continued to 
pervade the case against Major Bleker. The salient facts 
that point to his own innocence are still obscured although 
this Court did say in its opinion (p. 5) : 

"The direct evidence was considerably less against 
Bleker than Robinson." 

In considering how much "less" that evidence was it 
should be recalled that Major Bleker did not receive one 
penny from the illegal activities of his subordinates. Fur- 
thermore, he repeatedly warned them against "kickbacks" 
and dishonest conduct of any kind. [This was the testi- 
mony of the Government's own witness, Tr. 728, 894.] He 
misled no one, defrauded no one. Rather, Major Bleker 
was the one defrauded — defrauded by a misplaced faith in 
his subordinates — his old comrades in arms. 

Before the badge of guilt is to be forever substituted by 
this Court for the honors earned by appellant Bleker in 



nearly seven years of service which saw his promotion 
from private to major, he simply asks in this petition that 
the record be re-read with a single question in the mind 
of the Court. Would the jury's verdict be the same if 
he were tried alone for the single substantive offense of 
which he now stands convicted? 

Appellant Bleker submits that to this question, a nega- 
tive answer is inescapable — that he certainly would be 
acquitted by a jury confronted with the sole task of de- 
termining the culpability of what he, Bleker, did or did 
not do. 

The record demonstrates that Major Bleker could not 
have been rescued from his present plight no matter how 
carefully his counsel might have phrased his motions or 
how carefully the Court might have limited the legal ef- 
fect of the damaging testimony. 

The deadly work was done when he was charged and 
tried for conspiring with Robinson and Gleason. That 
work can only be undone by giving Major Bleker a new, 
separate trial. 

Then, and only then, can his case be tried, free from 
the pervasive stench of the hotel room intrigues and black 
market furtiveness of the others, from whom he has now 
been cleared of criminal association. The favorable out- 
come of that kind of a trial for Major Bleker is hardly 
even in doubt. It is that chance which he asks this Court 
to give him by granting a rehearing and reversing the 
judgment. 



II. 

The Opinion of This Court Is Confined to the Naked 
Question of the AdmissibiHty of Evidence and 
Has Not Considered Its Harmful Effect in the 
Context of a Disproved Conspiracy. 

This Court stated at page 5 that: 

"An analysis of the entire record establishes that 
all the evidence admitted against him (Bleker) was 
either unquestionably admissible or at least admissible 
within the discretion of the trial court in connection 
with Count 1 — the conspiracy count." 

Appellant submits that mere admissibility is not enough 
in the case of a disproved conspiracy, particularly in the 
light of Krulewitch v. U. S., 93 L. Ed. Adv. Ops. 623, 
decided after this matter was submitted on oral argument. 

This was the case in which Mr. Justice Jackson said at 
page 627 : 

"This case illustrates a present drift in the federal 
law of conspiracy which warrants some further com- 
ment because it is characteristic of the long evolution 
of that elastic, sprawling and pervasive offense. Its 
history exemplifies the 'tendency of a principle to 
expand itself to the limit of its logic' The unavail- 
ing protest of courts against the growing habit to 
indict for conspiracy in lieu of prosecuting for the 
substantive offense itself, or in addition thereto, sug- 
gests that loose practice as to this offense constitutes 
a serious threat to fairness in our administration of 
justice." (Emphasis supplied.) 



— 5— 

The fact that evidence might have been technically ad- 
missible against appellant Bleker on the conspiracy count 
does not mean that an injustice to him could not result. 
As was said in the Kridewitch case at page 631 : 

*'It is difficult for the individual to make his own 
case stand on its own merits in the minds of jurors 
who are ready to believe that birds of a feather are 
flocked together." 

Truly, this has been a matter in which it was difficult 
for appellant Bleker to make his case stand upon its own 
merits. In such a case "admissibility" alone cannot be the 
yardstick to determine whether justice was administered. 

Appellant submits that the true yardstick is the "pre- 
judicial effect" of evidence that ultimately turns out to be 
irrelevant. If it is prejudicial to the point where the jury 
cannot reasonably be expected to erase its effect from their 
minds, then justice calls out for the granting of a new 
trial. 



III. 

This Court Was Not Justified in Holding That Ap- 
pellant Bleker Waived His Objections by Silence 
and, in Any Case, the Prejudicial Effect Could 
Not Have Been Removed. 

Appellee government conceded that appellant Bleker 
moved to strike all of the testimony covered by Specifica- 
tions of Error 5 to 11, inclusive, and 13. (Rep. Br. 96.) 

Nevertheless this Court, at page 6 of its opinion, has de- 
scribed appellant Bicker's position as that of one ''who was 
silent when he should have spoken." But it is apparent 
that the fault of appellant Bleker, if any, was not that he 
did not speak but that he spoke too much — or at least too 
broadly — in framing his objection. Surely the greater in- 
cludes the lesser. 

But even if the appellant Bleker had couched his objec- 
tion in precisely correct terms and the Court below had 
heeded the objection there is little likelihood that the pre- 
judicial effect of the testimony would have been overcome. 

Here again the Knilewitch case should be cited, at page 
631: 

"When the trial starts, the accused feels the full 
impact of the conspiracy strategy. Strictly, the prose- 
cution should first establish prima facie the conspiracy 
and identify the conspirators, after which evidence of 
acts and declarations of each in the course of its 
execution are admissible against all. But the order 
of proof of so sprawling a charge is dif^cult for a 
judge to control. As a practical matter, the accused 
often is confronted with a hodge podge of acts and 
statements by others which he may never have author- 
ized or intended or even known about, but which help 
to persuade the jury of existence of the conspiracy 



— 7— 

itself. In other words, a conspiracy often is proved 
by evidence that is admissible only upon assumption 
that conspiracy existed. The naive assumption that 
prejudicial effects can he overcome by instructions to 
the jury, cf. Blumenthal v. United States, 332 U. S. 
539, 559, all practicing lawyers know to he unmiti- 
gated fiction. See Skidmore v. Baltimore &• Ohio 
R. Co., 167 F. 2d 54." (Emphasis supplied.) 

Conclusion. 

Rule 25 of this Court requires a certificate of counsel 
that a petition for rehearing is well-founded. In this case, 
counsel not only makes such representation but makes the 
additional statement that a new trial in this case for ap- 
pellant Bleker would definitely result in restoring him to a 
position of unstained honor in the country which he served 
so long and well. 

Respectfully submitted, 

Kenny and Cohn, 
Robert W. Kenny, 
Morris E. Cohn, 
Robert S. Morris, Jr., 
Attorneys for Appellant Bleker. 



Certificate of Counsel. 

The undersigned is one of counsel for the appellant 
Bleker and one who has prepared the within petition for 
rehearing. In my judgment this petition is well founded. 
Furthermore, it is not interposed for delay. 

Robert W. Kenny. 



.No. 11 880 

Circuit Court of Appeals 



Jfor tlje ^iiUl) CircaiU 



UNITED STATES OP AMERICA, 

Appellant, 

vs. 

ARROW STEVEDORING COMPANY, a Corpo- 
ration, 

Appellee. 



^xan^tvipt of ilecortr 



Upon Appeal from the District Court of the United States 

for the Northern District of California, 

Southern Division 

RLED 

APR 2 4 1948 

"""^•'■^ Ot iEBI- 

Rotary Colorprint, 870 Brannon Street, San Francisco 4-13-48 — 60 



No.11880 

(Bnittli States 

Circuit Court of ^jppeals 



jFor tije ^int!) Circuit, 



UNITED STATES OF AMERICA, 

Appellant, 

vs. 

ARROW STEVEDORING COMPANY, a Corpo- 
ration, 

Appellee. 



l^ransscript ot Hecortr 



Upon Appeal from the District Court of the United States 

for the Northern District of California, 

Southern Division 



INDEX 

1 Clerk's Note: When deemed likely to be of an important nature, 
errors or doubtful matters appearing in the original certified record 
are printed literally in italic; and, likewise, cancelled matter appear- 
ing in the original certified record is printed and cancelled herein 
accordingly. When possible, an omission from the text is indicated by 
printing in Italic the two words between which the omission seems to 
occur.] 

PAGE 

Answer 8 

Answer of Arrow Stevedoring Company, a Cor- 
poration, to Petition of the United States of 
America and Answer to Libel 17 

Answ^er to Libel 19 

Answer to Petition of the United States 17 

Appeal : 

Certificate of Clerk to Transcript of Rec- 
ord On 41 

Citation On 42 

Petitioner's Statement of Points On 109 

Respondent's Petition for 37 

Assignments of Error 39 

Certificate of Clerk to Transcript of Record on 
Appeal 41 

Citation on Appeal 42 

Decree 35 

Impleaded Respondent's Proposed Findings 

of Fact and Conclusion of Law and Decree 23 

Conclusions of Law 33 

Findings of Fact 24 



11 INDEX 

Longshoreman's Administrator's Libel in Per- 
sonam 2 

Order for Decree 23 

Petition to Bring in Tliird Party Under 
Rule 56 13 

Petitioner's Statement of Points Intended to 
Be Relied On on Appeal and Designation of 
Portion of Record to Be Printed 109 

Respondent's Designation of Apostles on Ap- 
, peal and Praecipe Therefor 38 

Respondent's Petition for Appeal 37 

Order Allowing Appeal 38 

Transcript of Proceedings 43 

Witnesses for Defendant: 
Anzulovich, Kasimer 

— direct 89 

Bowers, Claude 

■•■: — direct 44 

—cross 56, 68 

, ,^ — redirect 77 

Kokicks, Joseph 

— direct 93 

■ O'Shea, Martin 

— direct 98 

—cross 103, 105 



NAMES AND ADDRESSES OF PROCTORS 

FRANK J. HENNESSY, 
United States Attorney, 
Northern District of California. 

WILLIAM E. LICKING, 

Assistant United States Attorney, ' ■■■'■> ^ 

Northern District of California, 

Post Office Building, 

San Francisco, California, " ' 

Attorneys for Respondent and Appellant. 

JOHN H. BLACK, 

EDWARD R. KAY, ; '^ 

233 Sansome Street, 

San Francisco, California, 

Attorneys for Respondent-Impleaded and 
Appellee. ' ' • ' 

On appeal from the United States District Coiirt 
for the Northern District of California, Southern 
Division. 

Trial before the Honorable Louis E. Goodman, 
District Judge, sitting without jury. 



2 United States of America vs. 

In the United States District Court for the North- 
ern District of California, Southern Division, 
in Admiralty 

No. 24608-G 

EDGAR E. REITE, as Personal Representative 
and Administrator of the Estate of JOHN 
HENRY MITCHELL, Deceased, 

Libelant, 

vs. 

UNITED STATES OF AMERICA, 

Respondent. 

LONGSHOREMEN'S ADMINISTRATOR'S 
LIBEL IN PERSONAM 

(For damages under the Suits in Admiralty Act and 
the Public Vessels Act) 

To the Honorable the Judges of the Above-Entitled 
Court : 

The libel of Edgar E. Reite, personal representa- 
tive and administrator of the estate of John Henry 
Mitchell, deceased longshoreman, against the United 
States of America and the United States Naval ves- 
sel PA-164, owned, managed, navigated and oper- 
ated by said United States of America, and against 



Arrotv Stevedoring Com'/xmy 3 

all persons lawfully intervening in their interests, 
in a cause of action for damages under the Public 
Vessels Act and the Suits in Admiralty Act, civil 
and maritime, alleges: [1*] 

I. 

That the United States vessel, PA-164, is a ves- 
sel of United States registry and now is and dur- 
ing all of the times herein mentioned was owned, 
operated, managed and navigated by the United 
States of America as a Naval vessel, and was and 
is a public vessel of the United States. 

II. 

That libelant is a resident of the City and County 
of San Francisco, State of California, and resides 
within the jurisdiction of the above-entitled Court. 

III. 

That at the time of the acts of which complaint is 
herein made, the said PA-164 was within the juris- 
diction of the above-entitled Court, and at the time 
of the filing of this libel is, or soon will be, within 
the jurisdiction of the above-entitled Court. 

IV. 

That libelant brings and maintains this action 
pursuant to and under the })rovisions of the Publie 
Vessels Act, 46 USCA Sections 781 through 790; 
and the Suits in Admiralty Act; 46 USCA Sections 
741 and 752. 



♦Page numbering appearing at foot of page of original certified 
Transcript of Record. 



4 United States of America vs. 

V. 

That the respondent, United States of America, 
maintains an ofi&ce and principal place of business 
in connection with the matters of which complaint 
is herein made in the City and Comity of San Fran- 
cisco, State of California, and said respondent is 
within the jurisdiction of the above-entitled Court. 

VI. 

That heretofore, to wit, on May 31, 1946, libelant 
was appointed administrator of the estate of John 
Henry Mitchell, deceased, by order of the Superior 
Court of the State of California in and for the 
County of Alameda in action No. 94842 Probate. 
That on said day Letters of Administration were 
issued to libelant by said court in said action, and 
libelant since said date has been and now is the duly 
qualified and acting administrator of the estate of 
John Henry Mitchell, deceased. That libelant brings 
"and maintains this action for and on behalf and 
benefit of the sole and only surviving heir at law 
of" the deceased, namely, Ozrie Mitchell, his widow, 
Who was dependent upon the deceased for her 
support. 

VII. 

That on or about May 28, 1945, at or about the 
hour of 7 :30 a.m., the said vessel PA-164 was docked 
at Pier 18, San Francisco, California. That at said 
time and place the deceased John Henry Mitchell 
was employed by the Arrow Stevedoring Company 
as a stevedore, and was w^orking and employed 



Arrow Stevedoring Comjxmy 5 

a])oard said vessel Vs'ithin the course and scope of 
said employment, and was a business invitee of re- 
spondent aboard said vessel. That at said time and 
place and in company with other stevedores, the de- 
ceased was in the hold of the No. 4 hatch where he 
was engaged in working cargo. That at said time 
and place a hatch cover or tank top fell from the top 
of said hatch into the said hold and fell upon the 
said John Henry Mitchell, causing him severe and 
grievous bodily injuries which resulted in his death 
on May 28, 1945. That respondent at said time and 
place kept and maintained said vessel, her gear, ap- 
purtenances and appliances and the said #4 hatch 
in an unseaworthv condition in the followino- re- 
spects: (1) respondent failed to provide a suitable 
means for locking and securing the said hatch cover 
or tank top so that it would not fall into said hold, 
as aforesaid; (2) respondent left said hatch cover 
or tank top in a dangerous position, namely, in an 
upright position above said hatch, and because of the 
construction of said hatch cover or tank top said up- 
right position was the only way in which it could be 
left, and thereby the construction of said hatch [3] 
cover or tank top invited or caused the accident 
which occurred; (3) respondent failed to provide a 
suitable and proper hook, lock or other device to 
secure said tank top or hatch cover, so that it would 
not fall into said hold as occurred. 

VIII. 

That respondent was negligent in that respondent 
failed to safely and properly secure the said tank 
top or hatch cover so that it would not fall into said 



6 United States of America vs. 

hold, and negligently failed to provide hooks, locks 
or other devices for the i^urpose of securing said 
tank top or hatch cover, and negligently and care- 
lessly left said tank top or hatch cover in an upright 
position above said hold so that the said tank top 
or hatch cover was in a position where it could read- 
ily and it did fall into said hold, causing the acci- 
dent which resulted in the death of John Henry 
Mitciiell, as herein described. 

IX. 

That at the time of his death the deceased was 
of the age of thirty-five years and had a life expect- 
ancy of 33 years. That the deceased was in good 
health and was earning wages in the approximate 
sum of $3,000 per year. That as a result of the neg- 
ligence and carelessness of respondents and the lui- 
seaworthiness of said vessel, as hereinabove alleged, 
which caused the death of the deceased, Ozrie 
Mitchell, the widow of the deceased, has been wrong- 
fully denied and deprived of the financial support, 
care, maintenance, comfort, society, and companion- 
ship of the said John Henry Mitchell, all to her gen- 
eral damage in the sum of $75,000. 

X. 

That the said Ozrie Mitchell, widow of said de- 
ceased, has incurred special damage by way of 
funeral bills for the burial of said deceased in the 
amount of approximately $500, which special dam- 
age has been caused by the negligence and careless- 
ness of respondent herein. [4] 



Arrow Stevedoring Company 7 

XI. 

That all and singular, the allegations herein are 
true and are within the admiralty and maritime ju- 
risdiction of the above-entitled Court. 

Wherefore libelant prays that process in due form 
of law according to the course of this Honorable 
Court and in causes of admiralty and maritime ju- 
risdiction may issue against respondent and that 
respondent be required to appear and answer upon 
oath all and singular the matters aforesaid pursu- 
ant to the statutes of the United States in matters 
of this kind, and that this Honorable Court may be 
pleased to decree the payment by respondent of the 
sum of $75,500, plus costs of suit herein and for 
such other and further relief as is meet and just in 
the premises. 

Dated: June 10, 1946. 

GLADSTEIN, ANDERSEN, 
RESNER, SAWYER & 

EDISES, 
HERBERT RESNER, 

Proctors for Libelant. [5] 

State of California, 

City and County of San Francisco — ss. 

Ed Reite, being first duly sworn, deposes and 
says : 

That he is the person named in the within and 
foregoing libel; that he has read said libel and knows 
the contents thereof; that same is true of his own 



8 United States of America vs. 

knowledge, except as to the matters therein stated 
on his information or belief, and as to those matters 
he believes it to be true. 

EDGAR E. REITE. 

Subscribed and sworn to l}efore me this 10th day 
of Jmie, 1946. 

[Seal] ALICE C. MORSE, 

Notary Public in and for the City and County of 
San Francisco, State of California. 

[Endorsed] : Filed June 11, 1948. [6] 



[Title of District Court and Cause.] 

ANSWER 

Now comes the respondent, United States of 
America, by Frank J. Hennessy, United States 
Attorney for the Northern District of California, 
and answering the above captioned libel respect- 
fully alleges : 

I. 
Respondent admits the allegations of Article I of 
said libel. 

II. 
Respondent has no information or belief upon the 
allegations of Article II and therefore denies said 
allegations. 

III. 
Respondent admits the allegations of Article III. 

IV. 

As to the allegations of Article IV respondent 
leaves matters of law to the Court. 



Arrow Stevedoring Company 9 

V. 

Respondent admits the allegations of Article V. 

VI. 

Respondent has insufficient information or belief 
to enable it to answer the allegations of Article VI 
and demands strict proof thereof. 

VII. 

As to the allegations of Article VII respondent 
admits that the deceased John Henry Mitchell was 
upon said vessel as a stevedore in the employ of the 
Arrow Stevedoring Company, in the course of his 
said employment and that at said time and place he 
received some injury from a falling hatch cover, or 
tank top. Respondent does not have sufficient infor- 
mation or belief regarding the death of said John 
Henry Mitchell and demands strict proof thereof. 
Respondent denies the remaining allegations of said 
Article VII. 

VIII. 

As to the allegations set out in Article VIII re- 
spondent denies that any injuries sustained by the 
deceased as in said Article alleged, or at all, were 
proximately, or at all, caused by the alleged, or any 
negligence and/or carelessness of the respondent, 
or of its officers, or agents, or servants, or employees 
in the particulars alleged or in any matters at all. 
Denies that respondent or its officers, or agents, or 
servants or employees were negligent and/or care- 
less in or about any of the matters alleged in regard 
to the safety and proper security of said tank top 
or hatch cover, in the providing of hooks, locks or 



10 United States of America vs. 

other devices for the purpose of securing said tank 
top or hatch cover, or in leaving said tank top or 
hatch cover in an upright position, or any position 
above said hold, so that it could readily fall and/or 
that it did fall into said hold. 

In this connection respondent alleges that at all 
times in said article mentioned the said tank top or 
hatch cover was provided with a suitable and proper 
locking device consisting of locking hooks, chains 
and locking pins designed for, and proper and suit- 
able for the purpose of holding said tank top or 
hatch cover securely when the same was in an up- 
right position, and that if properly used said de- 
vices were sufficient to and would have prevented 
said tank top or hatch cover from falling, or being 
caused to fall by any normal operation of loading or 
unloading said vessel. Respondent further alleges 
that at no time mentioned in said libel was said tank 
top or hatch cover warped or defective, but was at 
all times in such good working condition that it 
could have been placed in the proper position for 
engaging with the hook chains and pins before men- 
tioned, provided for the purpose of securing said 
tank top or hatch cover against falling; that at all 
times mentioned the aforesaid devices for holding- 
said tank top or hatch cover in place were provided 
with proper locking pins; that at all times in said 
Article mentioned the deceased was by respondent 
afforded a safe place to perform his work as steve- 
dore ; that at all times mentioned in said Ai'ticle the 
said tank top or hatch cover was opened, and left 
open by the said Arrow Stevedoring Company, its 



Arrow Stevedoring Compwny 11 

officers, agents, servants [9] and employees; that at 
no time in said Article mentioned did respondent, 
its officers, or agents, or servants, or employees or 
members of the crew of said vessel have notice of, or 
reason to believe, that the said tank top or hatch 
cover was insecure in the matters alleged or at all. 

IX. 

Respondent has insufficient information or belief 
regarding the age, life expectancy, health and earn- 
ing capacity of deceased and demands strict proof 
thereof. Denies the remaining allegations of said 
Article. 

X. 

Respondent denies the allegations of Article X. 

XI. 

Article XI alleges matters for the Court to decide. 

Further Answering and as a First vSeparate and 
Distinct Defense to Said Libel: 

I. 

Respondent alleges upon information and belief 
that any injuries to, or damages suffered by libelant 
were sustained solely by libelant's own negligence 
and by the negligence of those exercising supervi- 
sion and control over said libelant in the premises 
in said libel set forth. Respondent in this connec- 
tion alleges that such damages and injuries if any 
there were, were not caused or contributed to in any 
manner by any fault or negligence of respondent, 
its servants, agents or representatives. 

Further Answering, and as a Second Separate and 
Distinct Defense to Said Libel: [10] 



12 United States of America vs. 

Respondent alleges that at the time and place in 
said libel set forth libelant was not an employee of 
the United States through the War Shipping Ad- 
ministration or otherwise, but on the contrary was 
an employee of the said Arrow Stevedoring Com- 
pany working on board the Naval Vessel PA-164, 
a public vessel of the United States, and that the 
damages claimed by libelant were not caused by said 
public vessel but on the contrary were as respondent 
is informed caused by the falling of a tank top or 
hatch cover on board said public vessel not employed 
as a merchant vessel; and that the cause of action 
stated by the libel is not one respecting which the 
United States has consented to be sued under the 
Public Vessels Act, 1925 (46 USC 781 et seq.), the 
War Shipping Administration (Clarification) Act, 
1943, sometimes referred to as Public Law 17 (50 
use appx. 1291), the Suits in Admiralty Act, 1920 
(46 USC 741 et seq.) or under any other provision 
of law whatsoever. 

Wherefore respondent prays that the libel may be 
dismissed with costs. 

/s/ FRANK J. HENNESSY, 

United States Attorney. 
/s/ WILLIAM E. LICKING, 

Asst. United States Attorney. 
/s/ C. ELMER COLLETT, 

Asst. United States Attorney, 
Proctors for Respondent, 
United States of America. 

[Endorsed] : Filed Oct. 1, 1946. [11] 



Arrow Stevedoring Company 13 

[Title of District Court and Cause.] 

PETITION TO BRING IN THIRD PARTY 
UNDER RULE 56 

To the Honorable, the Judges of the Above-Entitled 
Court Sitting in Admiralty: 

The Petition of The United States of America, 
respondent herein, respectfully shows: 

I. 

Upon information and belief that at all times 
hereinafter mentioned the Arrow Stevedoring Com- 
pany, a corporation, (hereinafter called "said Com- 
pany") was and now is a corporation organized and 
existing under the laws of the State of California 
and has a principal place of business in the City 
and County of San Francisco, California, within the 
jurisdiction of this Court. 

II. 

That on or about June 11, 1946, Edgar E. Reite 
as personal representative and administrator of the 
estate of John Henry Mitchell, deceased, filed his 
libel in personam now pending herein against peti- 
tioner. The United States of America, wherein 
libelant claims the sum of $75,000.00, together with 
special damages for personal injuries. A copy of 
said libel is hereto attached, marked Exhibit "A" 
and by reference made a part hereof; 

III. 

That on or about June 30, 1944, the said Com- 
pany entered into a written contract with petitioner, 



14 United States of America vs, 

the United States of America, which said contract, 
with changes herein immaterial [12] was at all times 
mentioned in said libel, and now is in full force and 
effect, said contract being designated N220S-9750A ; 
that by the terms of said contract said Company 
agreed to furnish and perform the necessary serv- 
ices and to furnish the necessary labor for loading 
and stevedoring certain vessels and to indemnify 
and save harmless the United States against all loss 
or damage in connection therewith; that at the time 
of the alleged occurrence of the injuries alleged in 
said libel said Company was engaged in furnishing 
labor and performing services under the terms of 
said contract on board said vessel and that the said 
Company, its agents, servants and employees were 
in sole and exclusive control of the hatch openings 
and hatch covers on board said vessel about which 
libelant and other members of the stevedore gang 
were working, and of all portions of said vessel, its 
gear and appurtenances connected with the happen- 
ing of the alleged injuries to libelant in said libel 
described. 

IV. 
Petitioner further alleges, upon information and 
belief that any injuries sustained by libelant on 
board said vessel, if any there were, were the conse- 
quence of his having been struck by a falling hatch 
cover while he was working on said vessel in the 
course of his employment by said Company in its 
performance of the contract aforesaid, and that said 
libelant was injured solely as a direct and proxi- 



Arrow Stevedoring Compcmy 15 

mate result of the careless, reckless and negligent 
manner in which said hatch cover had been placed, 
arranged, secured and maintained by said Company, 
its servants, agents and employees, and by the im- 
proper, careless and negligent manner in which said 
Company, its servants, agents and employees con- 
ducted themselves and their activities in the vicinity 
thereof of said vessel. 

V. 

That if petitioner is under any liability by rea- 
son of [13] any of the matters alleged in said libel, 
such liability was solely and proximately caused 
by the fault and negligence of said Company, its 
servants, agents and employees in respect of the 
matters in paragraph IV hereof set forth; by rea- 
son whereof any and all such liability should be 
borne by said Company and not by petitioner, and 
that said Company is wholly or partially liable to 
petitioner by way of indemnity or contribution, or 
other remedy over or otherwise, and that said Com- 
pany should be proceeded against by libelant directly 
and in the place and stead of this petitioner. 

VI. 

That all and singular the premises are true and 
within the admiralty and maritime jurisdiction of 
the United States and of this Honorable Court. 

Wherefore, petitioner prays : 

1. That process in due form of law may issue 
against said Arrow Stevedoring Company citing it 



16 United States of America vs. 

to appear and answer all and singular the matters of 
this petition and of the libel herewith exhibited. 

2. That said Arrow Stevedoring Company may 
be proceeded against as if originally made a party 
herein, and that if the Court shall find that libelant 
is entitled to a decree, then that said decree be 
entered against said Arrow Stevedoring Company, 
and that the Court may dismiss said libel as against 
this petitioner with costs. 

3. That petitioner may have such other and fur- 
ther relief and redress as the Court is competent to 
give in the premises. 

/s/ FRANK J. HENNESSY, 

United States Attorney. [14] 

/s/ WILLIAM E. LICKING, 

Asst. United States Attorney. 

/s/ C. ELMER COLLETT, 

Asst. United States Attorney, 
Proctors for Respondent, 
United States of America. 

[Endorsed] : Filed Oct. 1, 1946. [15] 



Arrow Stevedoring Company 17 

In the Southern Division of the United States 
District Court for the Northern District of 
California 

No. 24608-G 

EDGAR E. REITE, as Personal Representative 
and Administrator of the Estate of JOHN 
HENRY MITCHELL, Deceased, 

Libelant, 

vs. ' 

UNITED STATES OF AMERICA, 

Respondent, 
and 
ARROW STEVEDORING COMPANY, a Corpo- 
ration, 

Respondent-Impleaded. 

ANSWER OF ARROW STEVEDORING COM- 
PANY, A CORPORATION, TO PETITION 
OF THE UNITED STATES OF AMERICA 
AND ANSWER TO LIBEL 

Comes now Arrow Stevedoring Company, a cor- 
poration, respondent-impleaded herein, and answer- 
ing the petition and libel, alleges as follows : 

ANSWER TO PETITION OF THE UNITED 
STATES OF AMERICA 

I. 

Admits the allegations of Article I. 

II. 

Admits the allegations of Article II, save and 
except the reference made to the libel therein, and 
this respondent-impleaded refers to its answer to 
libel hereinafter set forth. [16] 



18 United States of America vs, 

III. 

Answering the allegations of Article III, respond- 
ent-impleaded alleges that there was in effect a con- 
tract between the United States of America and 
Arrow Stevedoring Company, said contract being 
designated as "N220-S-9750A," and save and ex- 
cept as hereinabove admitted and alleged, denies the 
allegations of Article III. 

IV. 

Answering the allegations of Article IV, respond- 
ent-impleaded alleges that libelant was injured by 
being struck by a hatch cover while working on the 
vessel in the course of his employment by Arrow 
Stevedoring Company, respondent-impleaded 
herein, and save and except as hereinabove admitted 
and alleged, denies the allegations of Article IV. 

V. 

Answering the allegations of Article V, respond- 
ent-impleaded alleges that it is under no liability 
by reason of any of the matters or things alleged in 
the petition of the United States of America, or 
said libel herein, and placing its denial upon said 
ground, denies the allegations contained in Article 
V, insofar as they concern, refer to or charge this 
respondent-impleaded. 

VI. 

Answering the allegations of Article VI, respond- 
ent-impleaded leaves open all questions of jurisdic- 
tion to the above-entitled court. 



Arrotv Stevedoring Compcmy 19 

VII. 

Further answering the allegations of said peti- 
tion of the United States of America filed herein, 
this respondent-impleaded alleges that the death of 
John Henry Mitchell was not caused by any fault, 
negligence or omissions on the part of its agents, 
servants or employees; that said respondent- [17] 
impleaded has paid to heirs and personal represent- 
atives of John Henry Mitchell, deceased, by way of 
indemnity payments pursuant to the provisions of 
the Longshoremen's and Harbor Workers' Com- 
pensation Act, 33 use 901, the sum of $1,282.41. 

ANSWER TO LIBEL 

Answering the allegations of the libel herein 
which said libel has been attached to the petition of 
the United States of America and made a part 
thereof, this res]3ondent-impleaded does allege as 
follows : 

I. 

Admits the allegations of Article I. 

11. 

Answering the allegations of Article II, respond- 
ent-impleaded has no information concerning the 
same and demands strict proof thereof. 

III. 

Answering the allegations of Article III, respond- 
ent-impleaded admits that USS "Edgecomb," also 
known as PA-164, was lying in the navigable waters 
of the United States of America, to wit : San Fran- 
cisco Bay, at the time of the happening of the acci- 
dent to John Henry Mitchell, deceased. 



20 United States of America vs. 

IV. 

Answering the allegations of Article IV, respond- 
ent-impleaded leaves open all questions of jurisdic- 
tion to the above-entitled Court. 

V. 

Admits the allegations of Article V. 

VI. 

Answering the allegations of Article VI, respond- 
ent-impleaded has no information as to whether said 
deceased, John Henry Mitchell, left heirs at law 
other than Ozrie Mitchell, [18] his widow, and de- 
mands strict proof thereof. 

VII. 

Answering the allegations of Article VII, re- 
spondent-impleaded alleges that John Henry 
Mitchell, deceased, met his death while in the em- 
ploy of respondent-impleaded in the capacity of a 
stevedore aboard said vessel, and save and except 
as hereinabove admitted and alleged, respondent- 
impleaded has no information concerning the same 
and demands strict proof thereof. 

VIII. 

Answering the allegations of Article VIII, this 
respondent-impleaded admits that respondent. 
United States of America, was negligent in and 
about the matters and things set forth in said 
article. 

IX. 

Answering the allegations of Article IX, re- 
spondent-impleaded has no information concerning 
the life expectancy or the earning capacity of said 



Arroiv Stevedoring Company 21 

deceased, and demands strict proof thereof, and de- 
nies that the death of John Henry Mitchell was 
caused by any carelessness or negligence of this re- 
spondent-impleaded, and further denies that Ozrie 
Mitchell, widow of deceased, has been damaged in 
the sum of $75,000, or any other sum or sums or 
otherwise or at all insofar as this respondent-im- 
pleaded is concerned. 

X. 
Denies the allegations of Article X. 

XI. 

Answering the allegations of Article XI, respond- 
ent-impleaded leaves open all questions of jurisdic- 
tion to the above-entitled Court. 

XII. 

Further answering allegations of said libel, this 
respondent-impleaded alleges that the death of John 
Henry Mitchell [19] was not caused by any fault, 
negligence or omissions on the part of its agents, 
servants or employees; that respondent-impleaded 
has paid to the heirs at law of John Henry Mitchell, 
deceased, the sum of $1,282.41 as and for indemnity 
payments pursuant to the provisions of the Long- 
shoremen's and Harbor Workers' Compensation 
Act, 33 use 901. 

Wherefore, respondent-impleaded prays that said 
petition be dismissed and that if any recovery be 
had by libelant against respondent. United States 
of America, this respondent-impleaded be awarded 
the sum of indemnity payments paid pursuant to 



22 United States of America vs. 

the Longshoremen's and Harbor Workers' Com- 
pensation Act, and that it have its costs of suit 
herein incurred. 

JOHN H. BLACK, 

EDWARD R. KAY, 
Proctors for Arrow Stevedoring Company, a Cor- 
poration. [20] 

State of California, 

City and County of San Francisco — ss. 

Fred John Foster, being first duly sworn, deposes 
and says: 

That he is an officer of Arrow Stevedoring Com- 
pany, a corporation, to wit : Secretary : that as such 
officer he is empowered to make this verification; 
that he has read the foregoing answer to Petition 
of the United States of America and Answer to 
Libel, and knows the contents thereof; that the 
same is true and correct of his own knowledge, 
except as to those matters therein stated upon infor- 
mation and belief, and as to those matters he 
believes it to be true. 

FRED JOHN FOSTER. 

Subscribed and sworn to before me this 21st day 
of January, 1947. 

[Seal] EMMA L. MacHUGH, 

Notary Public in and for the City and County of 
Francisco, State of California. 

My commission expires Jan. 15, 1948. 

[Endorsed] : Filed Jan. 23, 1947. 



Arrow Stevedoring Company 23 

[Title of District Court and Cause.] 

ORDER FOR DECREE 

Let a decree enter in favor of libelant and against 
the United States for the sum of $18,000.00 damages 
and in favor of interpleaded respondent, Arrow 
Stevedoring Company, a corporation. 

Counsel will prepare and present findings and 
decree in due course. 

Dated: June 10, 1947. 

MICHAEL J. ROCHE, 

United States District Judge. 
LOUIS E. GOODMAN, 

United States District Judge. 

[Endorsed] : Filed June 10, 1947. 



[Title of District Court and Cause.] 

IMPLEADED RESPONDENT'S PROPOSED 
FINDINGS OF FACT AND CONCLUSION 
OF LAW AND DECREE 

This cause having duly come on foi* trial before 
the court on the 11th and 24th days of February, 
1947, and the 18th day of April, 1947, and the 
parties having appeared by their respective proc- 
tors, and evidence having been received, and the 
matter having been duly submitted to the Court 
for determination, the Court hereby finds and con- 
cludes as follows: 



24 United States of America vs. 

FINDINGS OF FACT 

1. On May 28, 1945, the decedent, John Henry 
Mitchell, was employed as a stevedore by the im- 
pleaded respondent Arrow Stevedoring Company, 
and on said day he and five other stevedores were 
working at the level of the third deck in the No. 4 
port hatch of the U.S.S. Edgecombe. 

2. Said Arrow Stevedoring Company was en- 
gaged in unloading boxes of empty artillery shells 
through said hatch under a contract with the United 
States as the owner of the vessel. 

3. The decedent and said other five stevedores 
boarded said vessel about 7 a.m. on said day and 
went below to the third deck in said hatch for the 
purpose of unloading said shells. 

4. Said shells were in the lower compartment 
of said hatch, and completely filled the same. 

5. Said lower compartment had a square hatch 
coyer which was hinged on the inboard side, and 
which weighed about 3500 pounds. 

6. A gang of stevedores employed by Arrow 
Stevedoring Company had worked in the said No. 
4 port hatch up to 6:00 a.m. on the morning of 
May 28, 1945, but none of Ihe said gang or any 
other employee of Arrow Stevedoring Company 
was employed in and about the said hatch between 
6:00 on May 28, 1945, until 7:00 a.m. on May 28, 
1945, when the said John Henry Mitchell, deceased, 
and his fellow stevedores commenced to work in 
the said hatch. [23] 



Arrow Stevedoring Company 25 

7. The decedent and two other stevedores stood 
on top of said cargo for the purpose of commencing 
said work of unloading said hatch and a cargo 
board w^as lowered through the hatch by means of a 
winch and boom. Said cargo was lowered carefully 
and neither it nor the cable or falls struck the hat-ch 
cover while said cargo board was being lowered. 
After the cargo board came to rest on top of the 
cargo, said hatch cover suddenly fell shut and 
crushed the decedent beneath it and thereby in- 
flicted upon him fatal injuries. 

8. The hatch cover which fell was at least 8 feet 
measured athwartship and about M feet long meas- 
ured fore and aft. Tv/o dogs were provided for tli« 
purpose of securing and preventing tlie hatch cover 
from falling shut when it stood in vertical or open 
position. One dog w^as attached to the forward bulk- 
head of the hatch, and the other dog was attached 
to the aft bulkhead of the hatch. Each dog swung 
on a shaft which extended in a fore and aft direction 
from the bulkhead. When the hatch cover was raised 
to a vertical position, each dog was intended to swing 
down upon the upturned edge of the hatch cover, so 
that the hook on the end of the dog would extend 
beyond the edge of the cover and down a few inches 
from the top edge of the cover so as to grip it and 
hold it from falling. Each dog had a hole in its side, 
and, Avhen the dog was gripping the hatch cover, 
it was intended that a metal locking pin would be 
inserted through said hole and into a hole in the 
bulkhead, so as to lock the dog and pi'event the 



26 United States of America vs. 

same from i-aising and thereby releasing its grip 
on the hatcli cover. A locking pin for the forward 
dog was attached to the bulkhead by means of a 
chain near the dog. 

9. At the time of said accident the aft dog, that 
is to say, the dog attached to the aft bulkhead, was 
defective, in that the same did not extend far 
enough to permit the hook [24] on the end thereof 
to reach past the edge of the cover so as to grip 
the same when the cover was standing in its normal 
open position. Instead, the hook would rest on the 
Upturned edge of the hatch cover, in which position 
it could not grip the cover and could not and did 
not prevent the cover from falling. 

10. At the time of the accident the forward dog, 
that is, the dog attached to the forward bulkhead 
was defective, in that the hook on said dog was 
worn or rounded and said dog would raise by itself, 
so as to release its hold or grip on said hatch cover. 

11. At the time of said accident the forward dog 
and its locking pin were defective, in that said pin 
Could not be fitted into the holes in said dog and in 
said bulkhead so as to lock said dog and prevent 
it from raising; and no other means were provided 
for locking said dog. 

12. At the time of said accident there was a chain 
attached to the aft bulkhead for the purpose of 
holding a locking pin for the aft hook, but the pin 
therefor was missing, and no pin or other means 
were provided for locking the aft dog. 



Arrotv Stevedoring Compa/ny 27 

13. At the time of the accident no device, de- 
vices or means were provided for holding said hatch 
cover in an open or vertical position other than 
the dogs and pin heretofore mentioned. 

14. The dogs were situated at a height heyond 
the reach of a person on said third deck. When such 
cover was opened and fastened by the navy per- 
sonnel, it was the customary practice to push the 
dog into position by means of a broom handle or 
23ole. A broom handle or pole was maintained on 
said deck for use for such purpose, but was an 
inadequate means of fastening the cover. The use 
of this method would leave the dog unlocked. The 
locking pin could not be inserted by the pole or 
broom handle. It could be inserted only by hand. 
No ready, convenient, suitable or proper means were 
provided on said vessel for reaching said [25] lock- 
ing pin. Unless a box or similar object happened 
to be handy, the locking pin could be reached only 
by climbing to the top of the hatch cover. The 
latter method was dangerous to the personnel and 
was rarely, if ever, used. 

15. Said vessel was a Navy cargo vessel owned 
by the United States. It was being used by and 
was in the control of the United States Navy, and 
was manned by a navy crew. It was the announced 
custom and practice on navy vessels and on said 
vessel for the navy personnel to open and fasten 
all hatch covers; orders had been duly given by the 
proper naval officers to a navy crew on said vessel 
to open and fasten said hatch cover when necessary 
to the work of the stevedores. 



28 United States of America vs. 

16. It was the custom and duty of a navy crew 
to open and fasten said hatch cover so that decedent 
and his fellow stevedores could unload said cargo. 

17. At the time of said accident said forward 
dog, which had heen holding the cover, hecame dis- 
engaged and therebj^ released its grip on the cover, 
and, since the other dog failed to reach far enough 
to grij) the edge of the cover, there was nothing 
to liold said cover and it fell upon the decedent. 

.18. The said dogs and pin were defective in the 
parti^culars heretofore specified, and said vessel was 
unsea worthy in said particulars and by reason of 
the tibsence of suitable, adequate and proper means 
and devices for securely locking and fastening said 
hatch cover so that the same could not fall. 

. 19. T]ie United States and its officers, agents, 
servants, employees and crew upon said vessel knew, 
or .in the exercise of ordinary care should have 
known, that said dogs and pin were so defective, 
.^nd that said vessel was unseaworthy by reason of 
^uch defects and by reason of the absence of suit- 
able, adequate and proper means and devices for 
securely locking and fastening said hatch cover 
jSo that it would not fall ; and the United States was 
negligent in failing to remedy said defects [26] and 
^n not taking proper and reasonable precautions to 
secure said hatch cover so it would not fall. 

20. The fall of said cover and said fatal injuries 
were proximately caused by said defective and 
unseaworthy condition of said vessel. 

21. Said navy crew failed to use reasonable care 
in fastening said hatch cover, and failed to fasten 



Arrow Stevedoring Compcmy 29 

it securely and safely so as to prevent its falling. 
The United States, and its officers, agents, servants 
and employees upon said vessel, were negligent and 
careless in the use and maintenance of said hatch 
cover and in leaving and maintaining it in an opeil 
230sition without taking suitable, proper and suffi- 
cient precautions to prevent the same from falling 
to a closed position; and in negligently and care- 
lessly failing to provide a suitable locking device 
or devices to hold said hatch cover securely when 
the same was in an upright position so as to prevent 
the same from falling or being caused to fall in 
the course of the normal operations of loading and 
unloading; and by allowing and permitting said 
hatch cover to remain in an upright position when 
the respondent United States, and its officers, 
agents, servants, employees and crew upon said 
vessel, knew, or in the exercise of ordinary care 
should have known, that it was not adequately 
secured; and in failing to replace a locking pin 
which had been provided for and which was in- 
tended to engage the aft dog ; and in negligently per- 
mitting said hatch cover to remain in an upright 
position while said aft pin was missing without 
providing other means to serve the purpose of said 
pin in holding said hook securely, so as to prevent 
the same from being jarred or otherwise displaced 
from its proper position as a locking device; and 
in failing to lock the forward dog which was pro- 
vided for the purpose of securing said hatch cover 
from falling while the same was in [27] an upright 
position ; and in negligently failing to use a locking 



30 United States of America vs. 

pin on said forward dog, so as to prevent the same 
from being jarred or otherwise displaced from its 
proper position when in place as a locking device; 
and in making negligent use of the locking dogs, 
pins and other devices provided for the purpose of 
securing said hatch cover from falling when the 
same was in an upright position; and that the re- 
spondent United States, and its aforesaid officers, 
agent, servants, employees and crew on said vessel, 
negligently failed to provide decedent, John Henry 
Mitchell, with suitable or adequate warning, or any 
warning, of the danger then and there existing by 
reason of the insecurity of said hatch cover while 
the same was in an upright position; and that said 
hatch cover fell from an upright position as the 
proximate result of the aforesaid negligence of the 
respondent United States, and its officers, agents, 
servants, employees and crew on said vessel. 

22. As the proximate result of the falling of said 
hatch cover, the said John Henry Mitchell was 
killed. 

23. Proctors for libelant, respondent and im- 
pleaded respondent have stipulated that damages 
for the death of the said John Henry Mitchell may 
be assessed in the sum of $18,000.00. 

24. Respondent-impleaded Arrow Stevedoring 
Company was not guilty of any negligence proxi- 
mately causing or contributing to the accident. 

25. It is not true that the hatch cover had been 
placed or arranged or secured or maintained in 
a -careless or reckless or negligent manner by im- 



Arrow Stevedoring Company 31 

pleaded respondent Arrow Stevedoring Company, 
or any servants or agents or employees of said 
Arrow Stevedoring Company, and it is not true that 
any servant or agent [28] or employee of the said 
Arrow Stevedoring Company conducted himself or 
his activity in a careless or reckless or negligent 
manner. 

26. It is true that the decedent, John Henry 
Mitchell, was injured as the direct and proximate 
result of the defective and insufficient appliances 
owned, maintained, used and furnished by the re- 
spondent United States of America, and as the 
direct and proximate result of the negligent failure 
on the part of the respondent United States of 
America to furnish a reasonably safe place for the 
employees of the Arrow Stevedoring Company to 
perform their work and reasonably safe appliances 
with which to do the work at hand. 

27. The contract between the respondent United 
States and the impleaded respondent Arrow^ Steve- 
doring Company, under which the stevedores were 
working, contained clauses providing for liability 
to the United States by the Arrow Stevedoring 
Company for loss or damage sustained by the 
United States as a result of negligence or wrongful 
acts or omissions of the officers, agents or employees 
of Arrow Stevedoring Company, or through the 
fault of the equipment or gear of Arrow Stevedor- 
ing Company. This covenant was subject to the 
limitation or condition that the Arrow Stevedoring 
Company shall not be responsible to the United 
States for any loss or damage resulting from any 
act or omission of any employee of the United 



32 United States of America vs. 

Stales, or resulting from comj^liance by officers, 
agents or employees of the Arrow Stevedoring Com- 
pany with specific directions of the Port Director, 
N.T.S., 12th Naval District, nor for any loss or 
damage resulting from default of ships or other 
gear supplied by the United States. 

28. The aforesaid accident and the injuries and 
damage caused thereby resulted from default of 
ship and gear supplied by the respondent United 
States. [29] 

29. That libelant, Edgar E. Eeite, as personal 
representative and administrator of the estate of 
John Henry Mitchell, deceased, is and at all times 
mentioned herein, was a resident of the City and 
County of San Francisco, Stafp of California, v^ntliin 
the jurisdiction of the above entitled court. 

30. At all times herein mentioned the steamship 
U.S.S. Edgecombe was a steam cargo vessel owned 
by the respondent. The United States of America; 
and was a public vessel of the United States of 
America within the meanins: of the Statute of 
March 3rd, 1925, Chapter 428; and at all times 
herein mentioned was being used by and was in the 
control of The United States Navy as a naval trans- 
port or cargo vessel; and that at the time of the 
happening of the accident hereinafter mentioned 
said vessel was lying in the navigable waters of the 
United States, in San Francisco Bay, in the State 
of California, and was berthed for the purpose of 
unloading at Pier No. 18 at the Port of San 
Francisco. 

31. The respondent-impleaded, Arrow Stevedor- 
ing Company is a duly organized corporation, and 



Arrotv Stevedoring Company 33 

at the time of said accident said respondent-im- 
pleaded, by and through its stevedores in its employ- 
ment, was engaged in the unloading of said vessel 
pursuant to said contract with the United States 
of America. 

32. No award or order for payment of compen- 
sation has been filed by the deputy commissioner of 
the United States Employees Compensation Com- 
mission, and decedent's widow has not accepted com- 
pensation under an award or order filed by said 
deputy commissioner. A notice of election to sue 
has been duly filed with the United States Em- 
ployees Compensation Commission at San Fran- 
cisco, California, pursuant to Section 33 of the 
Longshoremen's and Harbor Workers' Compensa- 
tion Act. [30] 

CONCLUSIONS OF LAW 

1. John Henry Mitchell, deceased, was engaged 
in maritime employment and his administrators are 
entitled to receive under the provisions of the Public 
Vessels Act. 

2. The vessel U.S.S. Edgecombe was unsea- 
worthy with respect to the means provided for 
securing the hatch cover so as to prevent its falling 
upon stevedores working in the hatchway. 

3. The respondent United States was negligent 
and its negligence was the proximate cause of the 
fall of the hat-ch cover. 

4. The decedent was not negligent. 

5. The impleaded respondent Arrow Stevedoring 
Company was not negligent. 



34 United States of America vs. 

6. The fall of the hatch cover and the decedent's 
injuries were proximately caused by the defective 
and unseaworthy condition of said vessel in respect 
to the means for securing said hatch cover and by 
the negligence of the United States. 

7. The respondent United States is liable to the 
libelant, under and by virtue of the terms of the 
Public Vessels Act for the injuries to the decedent 
caused by said unseaworthy condition and by its 
said negligence. 

8. The respondent-imp] eaded Arrow Stevedoring 
Company is not liable to the libelant nor to the 
United States for any part of the loss or damage. 

9. The libelant is entitled to recover damages 
in the sum of $18,000.00 against the United States 
and judgment may be entered accordingly, together 
with libelant's costs in the sum of $ 

Dated this 19th day of August, 1947. 

LOUIS E. GOODMAN, 

United States District Judge. 
Receipt of copy of the foregoing proposed find- 
ings of fact and conclusion of law is hereby acknowl- 
edged this 16th day of June, 1947. Said proposed 
findings are approved as to form. 

FRANK J. HENNESSY, 
U. S. Attorney. 
By WILLIAM E. LICKING, 

Proctor for Respondent. 
By C. ELMER COLLETT, 

Ass't U. S. Atty. 
By HERBERT RESNER, 
Proctor for Libelant. 
[Endorsed] : Filed Aug. 19, 1947. [32] 



Arrow Stevedoring Company 35 

In the United States District Court for the North- 
ern District of California, Southern Division 

No. 24608-G 

EDGAR E. REITE, as personal representative and 
administrator of the estate of JOHN HENRY 
MITCHELL, deceased, 

Libelant. 

vs. 

UNITED STATES OF AMERICA, 

Respondent, 
and 

ARROW STEVEDORING COMPANY, a 
Corporation, 

Respondent-Impleaded. 

DECREE 

This cause having been heard on the pleadings 
and proofs, and having been duly submitted by the 
proctors of the respective parties, and the court 
having made and filed its findings of fact and con- 
clusions of law, it is 

Ordered, Adjudged and Decreed, that the libelant, 
Edgar E. Reite, recover of and from the respondent 
United States of America the sum of $18,000.00, 
together with libelant's costs taxed in the sum of 

$ , and amounting in all to the sum of $ 

with interest on said total sum at the rate of 4 per 
centum per annum from the date of this decree 
until paid; and it is further 



36 United States of America vs. 

Ordered, Adjudged and Decreed, that the im- 
pleaded respondent Arrow Stevedoring Company 
is not liable to libelant ; and it is further 

Ordered, Adjudged and Decreed, that the im- 
pleaded respondent Arrow Stevedoring Company 
is not liable to the United States of America, and 
that the petition of the respondent United States 
of America, under Rule 56 of the General Admiralty 
Rules, be and the same is hereby dismissed on the 
merits. 

Dated this 19th day of August, 1947. [33] 
LOUIS E. GOODMAN, 

United States District Judge. 

Receipt of copy of the foregoing Decree is hereby 
acknowledged this 16th day of June, 1947. Said 
Decree is approved as to form. 

FRANK J. HENNESSY, 
U. S. Attorney. 
By WILLIAM E. LICKING, 
Proctor for Respondent. 
C. ELMER COLLETT, 
Ass't. U. S. Attorney. 
By HERBERT RESNER, 
Proctor for Libelant. 

[Endorsed] : Filed and Entered August 19, 1947. 

Entered in Vol. 38, Judgment and Decrees at 
Page 292. [34] 



Arrow Stevedoring Company 37 

[Title of District Court and Cause.] 

RESPONDENT'S PETITION FOR APPEAL 

Respondent, being agrieved by the rulings, findings, 
and judgment and decree made and entered therein 
b}^ the above entitled United States District Court 
on August 19, 1947, claims an appeal from said rul- 
ings, findings, and judgment and decree to the United 
States Cir-cuit Court of Appeals for the Ninth Cir- 
cuit, and prays that its said appeal may be allowed. 

The points and grounds of appeal are the 
following : 

1. The Court erred in finding that respondent 
impleaded. Arrow Stevedoring Company, was not 
negligent. 

2. That the Court erred in finding that the re- 
spondent United States of America was not entitled 
to indemnity from respondent-impleaded, Arrow 
Stevedoring Company, under the terms of its con- 
tract with said company; 

3. That the Coui-t erred in finding that respond- 
ent United States of America was not entitled to full 
indemnity from respondent-impleaded, Arrow Steve- 
doring Company, under general law in the circum- 
stances of the case. 

Dated : November 14, 1947. 

/s/ FRANK J. HENNESSY, 

United States Attorney. 
/s/ WILLIAM E. LICKING, 

Proctors for Respondent, 
United States of America. 



38 United States of America vs. 

ORDER ALLOWING APPEAL 

The within appeal is hereby allowed. 
Done in open court this 14th day of November, 
1947. 

LOUIS E. GOODMAN, 

United States District Judge. 

[Endorsed] : Filed Nov. 14, 1947. [36] 



[Title of District Court and Cause.] 

RESPONDENT'S DESIGNATION OF APOS- 
TLES ON APPEAL AND PRAECIPE 
THEREFOR 

To Messrs. John H. Black and Edward R. Kay, 233 
Sansome Street, San Francisco 4, California, 
Proctors for Arrow Stevedoring Company, and 

To C. W. Calbreath, Clerk of the United States Dis- 
trict Court for the Northern District of Cali- 
fornia : 

Respondent hereby designates and requests that 
the record on appeal in the above entitled action shall 
include : 

1. The Libel. 

2. Answer of respondent United States of 
America. [37] 

3. The impleading petition. 

4. The answer of the respondent-impleaded, the 
Arrow Stevedoring Company. 



Arrow Stevedoring Compa/ny 39 

5. Reporter's transcript of testimony as taken 
Thursday, April 18, 1947, on behalf of the re- 
spondent United States of America, together 
with all exhibits not annexed to the pleadings. 

6. The findings of fact and conclusions of law as 
submitted by the impleaded respondent Arrow 
Stevedoring Company and signed and filed by 
the Court. 

7. Final Decree entered by the Court herein. 

8. Notice of Appeal. 

9. Petition for and Order allowing appeal. 

10. Asignment of Error. 

11. Citation on appeal. 

12. Praecipe for Apostles on appeal. 

/V FRANK J. HENNESSY, 
United States Attorney. 

/s/ WILLIAM E. LICKING, 

Assistant U. S. Attorney. 
Proctors for Respondent, 
United States of America. 

[Endorsed] : Filed Dec. 31, 1947. [38] 



[Title of District Court and Cause.] 

ASSIGNMENTS OF ERROR 

Respondent United States of America hereby as- 
signs as error in the proceedings, orders, decision 
and judgment of the District Court in the above 
entitled action, the following : 

1. That the District Court erred in making and 
entering the findings of fact, conclusions of law, and 



40 United States of America vs. 

order for judgment in favor of impleaded respondent 
and against the respondent United States of Amer- 
ica, made and entered in the above cause ; [39] 

2. That the District Court erred in failing and 
refusing to find that the impleaded respondent 
Arrow Stevedoring Company was negligent; 

3. That the District Court erred in finding that 
the respondent United States of America was 
negligent ; 

4. That the District Court erred in finding and 
holding that the respondent United States of Amer- 
ica was not entitled to indemnity from the im- 
pleaded respondent Arrow Stevedoring Company 
under its contract with that company; 

5. That the District Court erred in holding that 
respondent United States of America was not en- 
titled to indemnity from the impleaded respondent 
Arrow Stevedoring Company under general law. 

Dated: Dec. 31, 1947. 

/s/ FRANK J. HENNESSY, 

United States Attorney, 
/s/ WILLIAM E. LICKING, 

Assistant U. S. Attorney, 
Proctors for Respondent, 
United States of America. 

[Endorsed]: Filed Dec. 31, 1947. [40] 



Arrow Stevedoring Company ^^1 

District Court of the United States, 
Northern District of California 

CERTIFICATE OF CLERK TO TRANSCRIPT 
OF RECORD ON APPEAL 

I, C. W. Calbreath, Clerk of the District Court 
of the United States, for the Northern District of 
California, do hereby certify that the foregoing 40 
pages, numbered 1 to 40, inclusive, contain a full, 
true, and correct transcript of the records and 
proceedings in the case of Edgar E. Reite, etc.. 
Libelant, vs. United States of America, Respond- 
ent, and Arrow Stevedoring Company, a corpora- 
tion, Respondent-Impleaded, No. 24608-G, as the 
same now remain on file and of record in my office. 

I further certify that the cost of preparing and 
certif^dng the foregoing transcript of record on 
appeal is the sum of $13.20 and that the said amount 
has been charged against the United States of 
America. And I Further Certify that annexed 
hereto is the original Citation on Appeal. 

In Witness Whereof, I have hereunto set my 
hand and affixed the seal of said District Court at 
San Francisco, California, this 10th day of March, 
A. D. 1948. 

[Seal] C. W. CALBREATH, 

Clerk. 
/s/ M. E. VAN BUREN, 
Deputy Clerk. [41] 



42 United States of America vs. 

[Title of District Court and Cause.] 

CITATION ON APPEAL 

To Arrow Stevedoring Company, a corporation, the 
above named respondent-impleaded, and to 
Messrs. John H. Black and Edward R. Kay, 
its proctors: 

Whereas, the United States of America, respond- 
ent above, has lately appealed to the United States 
Circuit Court of Appeals for the Ninth Circuit, 
from the entry of a decree denying recovery as 
prayed for in respondent's impleading petition, 
which said decree was entered on August 19, 1947, 
in the District Court of the United States for the 
Northern District of California; 

You are, therefore, hereby cited to appear before 
the said United States Circuit Court of Appeals for 
the Ninth Circuit, to be held in the City of San 
Francisco, State of California, at the next term of 
said Court thirty days after the date of this cita- 
tion, to do and receive what may appertain to jus- 
tice to be done in the premises. 

Given under my hand in the City and County of 
San Francisco, State of California, in the Ninth 
Circuit, on the 14th day of November, 1947. 
/s/ LOUIS GOODMAN, 

U. S. District Judge. 



"^o' 



[Endorsed] : Filed Nov. 14, 1947. [43] 



Arrow Stevedoring Compamy 43 

In the Southern Division of the United States 
District Court for the Northern District of 
California 

No. 24,608-G— In Admiralty 

EDGAR E. EEITE, as Personal Representative 
and Administrator of the Estate of JOHN 
HENRY MITCHELL, 

Libelant, 
vs. 
UNITED STATES OF AMERICA, 

Respondent, 
and 
ARROW STEVEDORING COMPANY, a Corpo- 
ration, 

Respondent-Impleaded. 

Before: Hon. Michael J. Roche and 

Hon. Louis E. Goodman, Judges. 

TRANSCRIPT OF PROCEEDINGS 

Thursday, April 18, 1947 

Counsel Appearing: 

For Libelant: Herbert Resner, Esq. 

For Impleaded Respondent, Arrow Stevedoring 
Company, John H. Black, Esq., and Edward R. 
Kay, Esq. 

For the United States of America: William E. 
Licking, Esq., Assistant United States Attorney. 

CLAUDE BOWERS 

was called as a witness on behalf of the defendant, 
United States of America, and being first duly 
sworn, testified as follows : 



44 United States of America vs. 

(Testimony of Claude Bowers.) 

Direct Examination 
By Mr. Licking: 

Q. Mr. Bowers, referring to a date about May 
28, 1945, at that time were you employed by the 
Arrow Stevedoring Company? A. I was. 

Q. In what capacity? A. Walking boss. 

Q. Do you recall being employed on a vessel 
about that time on which an accident happened in 
which one stevedore was killed and others injured 
due to the falling of a hatch? A. I do. 

Q. Was that about the date I mentioned, May 
28, 1945? A. It was. 

Q. You heretofore testified in the other action 
that you have heard the Court and counsel dis- 
cussing ? A. Yes. 

Mr. Resner: If your Honor please, may the 
witness be instructed to speak louder so I can hear? 

The Court : Speak up. 

Q. (By Mr. Licking) : In what capacity were 
you employed by the Arrow Stevedoring Company 
on the vessel where the accident [2"] happened at 
this time? A. Walking boss. 

Q. As walking boss, what were your duties? 

A. I had charge of the stevedoring operations 
of the ship. 

Q. What shift were you on? A. Night. 

Q. What time does that shift go off duty, the 
men on the shift, do you recall ? 

A, In the evening. 



* Page numbering appearing at top of page of Reporter's certified 
Transcript of Record. 



Arrow Stevedormg Company 45 

(Testimony of Claude Bowers.) 

Q. In the evening or tlie morning? Do they go 
on in the evening ? 

A. They go on in the evening at 7:00 and come 
off at 6 :00 in the morning. 

Q. Are you required by your duties to be on the 
ship before your gang or remain after your gang 
leaves ? 

A. We are required to be there before and after 
they leave the boat. 

Q. State whether or not part of your duties as 
gang foreman or stevedore foreman — what did you 
say your capacity was? A. Walking boss. 

Q. State whether or not part of your duties as 
w^alking boss include remaining there to communi- 
cate the condition of the ship and gear to the man 
taking your position on the next shift. 

A. We do. 

Mr. Kay: I object to that on the ground no 
proper foundation has been laid. It would be call- 
ing for the opinion and [3] conclusion of the witness. 
There is no showing as to whether there were any 
duties, and if they were, they were not in writing. 
There is no proper foundation for that at all. If he 
asks what he did do 

Mr. Licking: I do not understand the objection. 
The objection that a foundation is not laid is an 
objection addressed to the introduction of a conver- 
sation or some such matter. Whether or not this 
witness as the stevedore walking boss in charge of 
the stevedoring of a vessel, and employed by the 
Arrow Stevedoring Company, is competent to state 



46 United States of America vs. 

(Testimony of Claude Bowers.) 

what his duties were is a matter for the Court to 
answer. If the Court consider he is not competent 
to state what his duties were, the objection would go 
to the competence of the testimony. 

Mr. Kay : Is that what you asked him, what his 
duties were: 

Mr. Licking: I did, and that is what the objec- 
tion was to. 

Mr. Kay: It wasn't asked in that manner. 

The Court : Read the last question. 

(Question read.) 

Mr. Kay: Furthermore, your Honor, on the 
ground it is leading and suggestive. That won't 
help me now. 

The Court: Why don't you ask him what his 
duties were and let us proceed. 

Mr. Licking: Very well. 
|.Q. As walking boss for the stevedore gang, what 
were your duties'? [4] 

A. To supervise the unloading operations. 
. Q. Did that include the supervision of all the 
stevedores workmg on the vessel for the Arrow 
Stevedoring Company for your shift? 

A. Yes, sir. 

Q. Is the organization of the two shifts the same, 
that is, the organization of the day and night shift? 

A. The organization is the same, but not always 
the operation. 

Q. The organization is the same; that is, there 
is a man on the day shift who occupies the same 
position you occupy? 



Arroiv Stevedoring Compam/y 47 

(Testimony of Claude Bowers.) 

A. The same position. 

Q. Can you state now whether part of your 
duties include remaining on board the vessel after 
your shift goes off ? A. Yes, we do. 

Q. Can you state whether or not part of your 
duties requires communication by you of the con- 
dition of the ship's gear to the men who take your 
position on the succeeding shift? A. It is. 

Q. On this particular instance, with regard to 
the accident, you recall the place where the acci- 
dent subsequently happened? A. Yes, I do. 

Q. How would you describe that on a ship 
briefly ? A. How it happened ? 

Q. No, what was the place ; how would you name 
the place where it happened? [5] 

A. The hatch, you mean? 

Q. Yes. 

Mr. Kay: Your Honor, there is no foundation 
laid as to time and place. This witness testified 
before he was not there at the time of the accident. 
I do not know when he came on afterwards. Condi- 
tions had changed then, and it is obviously improper 
to ask that question in that form. 

The Court : I shall have to ask a question or two 
to get myself in the same position that Judge Roche 
is in. This witness was on a shift that came on after 
or before ? 

Mr. Kay: This witness was the walking boss on 
the shift that was on the vessel before the shift on 
which the accident happened. 

The Court: He went off the shift before the 
accident happened? 



48 United States of America vs. 

(Testimony of Claude Bowers.) 

Mr. Kay: He went off the shift before the acci- 
dent happened. He has testified that it was part 
of his duties to remain after his shift went off. 

The Court : Ask him what he did in this particu- 
lar case. That is what we want to know. 

Mr. Licking: I would like to ask him the ques- 
tion I did ask him, your Honor. 

Q. The place where your gang was w^orking im- 
mediately before they went off, what hold of the 
ship was it? A. No. 4 hold. [6] 

Q. On what deck? A. The lower hold. 

• Q, As I understand it, there are two hatch cov- 
ers to that particular hold at that level? 

A. Yes. 

Q. They open inboard? A. Inboard. 

Q. Can you state whether or not on the 28th, on 
the night shift, the stevedore gang over which you 
had supei^rision, did or did not open that hatch? 
,:.:A. We did. 

Qi You did open the hatch. Had you been work- 
ing above the liatch prior to that time? 
vA. Yes. 

Q. About what time did you come down to the 
hatch? 

: A. Well, shortly after we came back from lunch 
that night. I would say around 1 :30 in the morning. 

Q. When you opened the hatch did you observe 
anything unusual about the condition of the hatch 
or; the covers ? 

A. After we looked at the covers, and we saw 
what the situation was there, the shape of the 
hatch 



Arrow Stevedoring Company 49 

(Testimony of Claude Bowers.) 

Q. What did you see ? 

A. Well, we say that the hooks wasn't in a 
proper condition. One was sprung. Had a hard 
time getting it over the top, but we finally made 
it. [7] 

Q. Hook or hooks'? 

A. The hooks. There is two of them. 

Q. Those hooks drop over the edge of the raised 
hatch and hold it in place *? 

A. To hold it in place, yes. 

Q. Do you recall whether or not those hooks are 
equipped or supposed to be equipped with a pin to 
hold them in place? A. They are, yes. 

Q. You say that you succeeded in fixing both of 
them over the edge of the raised hatch. On which 
side was it that you had the difficulty, do you 
recall? A. On the port side. 

Q. Do you recall whether or not the pins in- 
tended to secure those dogs in place after the hatch 
is raised and they are placed to hold it were there 
or not? 

Mr. Kay : What time ? 

Mr. Licking: At that time when they secured it. 

The Witness: No, only one of them was there. 
And it was bent. 

Q. (By Mr. Licking) : And the other one was 
missing? 

A. One was disappeared altogether. 

Q. One had disappeared and one was bent. Was 
the condition of the bent one such that you could 
not use it, that is, that you could not put the pin 
in the hole? A. Just part way. [8] 



50 United States of America vs. 

(Testimony of Claude Bowers.) 

Q. Then the device to hold the hatch up was, in 
the re.sf)ect you testified, defective; that is, the pins 
were not there to hold the doors in place, one of the 
pins wasn't there and the other pin you could not 
use, is that right ? 

Mr. Kay: I object to the question on the ground 
it is complex and calling for the opinion and con- 
clusion of the witness. Mr. Licking says, "In other 
words, it is defective." Whether it appeared defec- 
tive to him or not is going to be one of the issues. 

Mr. Licking : All right. I will ask him that : 

Q. At that time did it appear to you to be de- 
fective? 

Mr. Kay: The word "defective" is what I object 
to, your Honor. He can merely describe what it is, 
and that is for the Court to determine. 

Q. (By Mr. Licking) : What effect would the 
fact that the pins were not in have upon the opera- 
tion of the dogs? 

■ Mr. Kay : Just a moment, your Honor. That is 
calling for the opinion and conchision of the wit- 
ness. If he could not put it on there, he would not 
know what the effect would be if it was on. 

Q. (By Mr. Licking) : How long have you been 
a stevedore? A. Approximately 25 years. 

Q. Have you ever seen fastenings of this nature 
before? A. I have. 

Q. Do you know how they work? [9] 

A. I do. 

Q. Basing your answer on your 25 years' experi- 
ence and your knowledge of this type of fastening, 
can you state what the effect of these pins being 



Arrow Stevedoring Company 51 

(Testimony of Claude Bowers.) 

missing would be on the operation of the dogs in 

holding this lid or hatch cover up? 

A. Well, that is a matter of difference. I 
couldn't say accuratel}^. 

Q. You couldn't say accurately? 

A. They hold them up. 

Q. Can you state whether or not without the 
pins in there the dogs can come loose through mo- 
tion of the ship or cargo gear? 

Mr. Kay: I object to that on the ground it is 
Incompetent, irrelevant and immaterial. The wit- 
ness has testified he could not say. Now he is, in 
fact, cross-examining his own witness. 

The Court: Isn't this the testimony that was 
adduced before Judge Roche? 

Mr. Licking: This is the testimony which coun- 
sel has characterized before the Court, and I 
thought the Court might have had the same impres- 
sion of the evidence that counsel had, and I wanted 
to check over it. 

Mr. Kay: I object further on the groimd it has 
been asked and answered. He says he does not know 
W'hat the effect would be. 

Mr. Licking: He has answered that. He said it 
would depend upon what happened. [10] 

The Court: Are you going to open now with this 
mtness the testimony he gave before Judge Roche? 

Mr. Licking: No, I am only going over certain 
points in the testimony that at that time were ap- 
parently not stressed sufficiently to impress them 
upon the Court or counsel 's mind. I intend to prov^^ 



52 United States of America vs. 

(Testimony of Claude Bowers.) 

by this witness — I thought I had before — that he 
noted this defect at the time his gang fastened the 
hatch up. 

The Court: You said that he noted the defect 
and he reported it to the Navy. 

Mr. Licking : No, I did not say he reported it to 
tbb^ Navy. 

•The Court: Somebody did. 

]\lr. Licking: That is just the point I had in 
mind. Somebody else said it, and I want the evi- 
dence here so that we are not in doubt as to who 
testiiied to what. 

(The last question was read.) 

Mr. Kay: Your Honor, that is highly conjec- 
tural. The witness has testified he would not know 
the ;;(jffect. It has been asked and answered. 

..Mr. Licking: He has not testified anything to 
tliat . effect. It is proper, particularly in view of 
what happened. 

.^The Court: Overruled. 

.;,])|^r; ! Licking: May I have the question read 
again 1 

■■'■' ^"•- (Question reread.) 

A- Well, that all depends on it anything strikes 
tliem or not. [11] I have seen several ships with- 
out any pins at all in them and it never hurt them. 

Q. (By Mr. Licking) : You say it depends on 
whether something strikes them or not ? 

A. It depends on whether something strikes 
them. 



Arrow Stevedoring Company 53 

(Testimony of Claude Bowers.) 

Q. After raising this particular hatch cover, you 
say at the same time raised the other cover. Did the 
gang go to work there moving other cargo'? :'., 

A. In the other hatch, yes. a 

Q. The other hatch. They did not work under 
this port hatch? A. No. 

Q. They continued to work and take cargo Out 
from under the other hatch! A. We did. v; 

Q. What reason, if any 

The Court: Is there a transcript of the testi- 
mony in the other case available % . ■- 
(A transcript was handed to the Court.) . ; 

Mr. Resner : It is indexed. 

Q. (By Mr. Licking) : What was your reason, 
if any, for not working your gang under the./port 
hatch cover after you raised it? ? ; :.. •; 

A. On account of the unsafe condition in the first 
place. The gear was not trimmed right to work in 
that hatch. : ; ; • ; 

Q. When you speak of the gear, to what do you 
refer? [12] 

A. The overhead gear, the falls. , 

Q. Were the same falls and booms used to unload 
both sides of this hatch? A. Both sides, yes. 

Q. The same one? A. The same one. " 

Q. And it was improperly rigged for the pfort 
side? A. It w^as. 

Q. At the time when you opened the hatch, was 
there any Navy personnel there helping you? 

A. No. 



54 United States of America vs. 

(Testimony of Claude Bowers.) 

Q. Will \-ou state whether or not you reported 
the condition that you found, or any of it, to the 
ship's officers or to any of them? 

A. I did, yes. 

Q. Wliat did you report, if you recall, and to 
whom ? 

A. To the lieutenant in charge of the ship at that 
time. 

Q. What did you report to him? 

A. We reported to him we would be ready to go 
to work in that hatch there, for him to get the gear 
ready. 

Q. To get the gear ready? 

A. And rig it for us. When we got ready to go 
to work, we found it hadn't been rigged yet. He 
said he had no men on board the ship that could do 
it at that time. 

Q. Wliat time was this when you spoke to the 
lieutenant*? [13] 

A. Around 1:30 in the morning. 

Q. He said he had no men to fix the gear at that 
time. When you speak of the gear, are you referring 
to these holding devices and the pin or to the un- 
loading gear to which you referred? 

A. I am referring to the unloading gear. 

Q. To the sling and falls? 

A. Sling and the falls, and, well, it will take in 
the tanks, too. It would take in the tanks. 

Q. Are you quite certain that at that time you 
did not report to the lieutenant that this pin was 
missing out of the dog? 



Arroiv Stevedoring Company 55 

(Testimony of Claude Bowers.) 

A. I told him the dog — I didn't say anything 
about the pin — I told him the i^ins was bent and 
wouldn't go in. 

Q. You told him the pins were bent and would 
not go in the dog. A'VHiat did he say? 

A. He said he would fix it in the morning or have 
it fixed. 

Q. Did he say what time? 

A. No, he didn't say what time, as soon as he 
had the men available. 

Q. You continued to work on the other side but 
did not work on the port side when you found that 
condition ? A. That is right. 

Q. Your men worked until what time? 

A. Until 6:00 o'clock. 

Q. And then left the ship ? [14] A. Yes. 

Q. Were you on the ship when the next gang, 
the morning gang, came on on the 28th? 

A. I was. 

Q. By the way, who was the man on that gang 
who held the same position you held on the night 
shift? A. Michael O'Shea. 

Q. At that time did you report to O'Shea the 
condition which you had found in the hold? 

A. I did. 

Q. Did you report to him that the holding de- 
vices were defective as you testified here, that is, 
that this pin was missing? 

A. I told him that the pin was sprung on the 
top, and they would have to see the Navy to get that 
fixed before they started operating in that hatch. 



56 United States of America vs. 

(Testimony of Claude Bowers.) 

Q. You are quite certain you told him that? 

A. Yes, sir. 

Q. How soon was that before his gang went to 
work? 

A. That happened about twenty minutes after 
six, I guess, on that hatch. 

Q. That was about 20 minutes after six. 

I think I have no further questions of the 
wdtness. 

Cross-Examination 
By Mr. Kay : 

Q. Mr. Bowers, you remember when you testi- 
fied here at the last trial, don't you? [15] 

A. I do. 

Q. You told the Court the facts as you remem- 
bered them at that time, didn't you? The facts that 
you testified in the last trial here were the facts that 
you had in mind at that time, is that right ? 

A. I answered the questions to the best of my 
ability. 

Q. Yes, and you told the truth then, didn't you? 

A. I certainly did. I tried my best, anyway. 

Q. As a matter of fact, you considered that 
hatch door safe as it was there? You did not find 
anything that would indicate to you that it was un- 
safe when you went on there? 

A. I certainly did. 

Q. You did? 

A. The hook was sprung. We had an awful job 
to get it over the hatch. 



Arrow Stevedoring Compcmy 57 

Q. You are kind of mixed up on your facts in 
this case, aren't you? A. No, I am not. 

Q. You never at any time considered that that 
hatch door, as it was up there, the way you say you 
lifted it, was safe"? You never did consider that it 
was safe, is that right? You thought it was unsafe 
all the time? A. I didn't say it was unsafe. 

Mr. Licking: Counsel objected continually to my 
questioning the witness as to his conclusions and 
opinions, and he has [16] asked for nothing else. I 
haven't objected but I do now. 

Q. (By Mr. Kay) : You did make the state- 
ment that this hatch on the port side was to all ap- 
pearances, so far as you were concerned, safe, isn't 
that correct ? 

Mr. Licking: I object, if the Court please, if it 
is proposed to cross-examine the witness with ref- 
erence to the transcript of his testimony at the for- 
mer trial. The witness should be shown the tran- 
script rather than having it paraphrased. 

Mr. Kay : Very well, we will do that. 

Q. I will refer you to page 223 of the transcript 
of the testimony of the previous trial. Just read 
this to yourself, line 13 through to line 17. 

(The witness read the page of transcript 
indicated.) 

Q. (By Mr. Kay) : Have you read it, Mr. 
Bowers? A. I have. 

Q. I will read that to you: 

"A. I said the door was safe, but the gear 
was not safe. 



58 United States of America vs. 

(Testimony of Claude Bowers.) 

*'Q. That is all you mean ? 
"A. Yes. 

"Q. The door was safe ? 
"A. The door was safe, yes. 
"Q. So far as you could observe, when that 
door was put up there, it was safe? 
''A. It was safe. It looked safe." 
Q. You so testified at the last trial, didn't you? 
A. I did. 
Q. Is that right? 

A. It looked safe from the top. That is when you 
asked me if I looked down from the top, not from 
the bottom. 

Q. I will not let you look back on this again and 
see where you can find in that question and any- 
where preceding that part that I quoted, that I 
asked you if it looked safe from the top. 

A. The same thing I said before. I did not con- 
sider it safe. 

Q. This says you did consider it safe. You so 
testified the last time. Do you remember that ? 
Mr. Licking : I object to that. 
The Witness: Under different circumstances. 
Mr. Licking: Counsel, he just now said the same 
thing he said before: It was unsafe, or looked 
unsafe. 

Mr. Kay : When did he testify it looked unsafe ? 
Mr. Licking: Just a moment ago. He said the 
same as he testified before. It looked unsafe. 

Q. (By Mr. Kay) : The fact is, Mr. Bowers, 
at the time you worked there that whole shift, so 



Arrow Stevedoring Compomy 59 

(Testimony of Claude Bowers.) 

far as the door itself, the hatch door itself was con- 
cerned, that looked safe to you, isn't that correct? 

A. From outside appearance it would. 

Q. And the time that you noted these conditions 
of the bent pins and so on, was after you quit your 
shift there? 

A. No, they called my attention to it right away. 

Q. You went to see the lieutenant about the rig- 
ging that you considered imsafe, isn't that right? 

A. Well, the rigging — their job is the same 
thing, to lift the hatch. 

Q. You went to the lieutenant on the ship to tell 
him about the rigging. Did you tell him also about 
the pin, and so forth? 

A. I told him it was bent. 

Q. You told him you were going to leave the 
hatch door in that condition until he fixed it? 

A. I told him I would leave that hatch altogether 
and work on the other side. 

Q. What did he say about that? 

A. He said, "All right." 

Q. He did not say when he was going to fix it, 
but he would get it fixed some time? 

A. He would get it fixed as soon as he had the 
men available to fix it. 

Q. The Navy did not give you or anyone repre- 
senting the Navy instructions as to how to secure 
this hatch door, did they? A. No. 

Q. This rigging is done by the Navy men? You 
never do any of that? 

A. Not the overhead gear, no. 



60 United States of America vs. 

(Testimony of Claude Bowers.) 

Q. You did not in this case? 

A. We did not touch the overhead at all. [19] 

The Court : It was the gear hitting the door that 
caused the door to fall, is that right ? I did not hear 
the evidence in the case. 

Mr. Licking: The door fell because the locking 
device which should be held by this pm let the door 
fall. The testimonj^ is the door should not fall with 
the dogs over it. 

The Court : The door fell without any contribut- 
ing factor? It just dropped? 

Mr. Licking: The door fell, the testimony in the 
record, as I recall it, is due to the vibration of the 
ship, the movement of the ship, moving the cargo 
gear or the possibility of the dog being struck by 
the cargo gear, the dog without the pin in it. 

The Court: The gear hit the door — it seems 
somewhere or other someone mentioned that in the 
trial of this case. 

Mr. Licking: Whether the gear hit the door or 
not, I would say, your Honor, is not clear from the 
record. You would agree to that, wouldn't you? 

The Court: I do not say that it is. 

Mr. Kay: I do not think there was any direct 
evidence, your Honor, on that. 

Mr. Licking: The testimony was further — I 
think counsel will agree with me — the testimony was 
without the pin which goes through the dog to hold 
the dog in position, that the dog could work loose 
with the ship swaying or could be knocked [20] 
loose. 



Arrow Stevedoring Company 61 

(Testimony of Claude Bowers.) 

Q. (By Mr. Kay) : The Navy lieutenant told 
you also wlien you went to see liim there was no 
lashing or anything that you could use for tank 
tops, is that right, to lash this hatch? 

A. He did not tell me a thing ahout the lashing. 

Q. He told you there was no rope, lashing rope 
or cable*? 

A. We could see ourselves there wasn 't anything 
there. There was nothing of that sort around, only 
junk. 

Q. What time did you leave the ship the day of 
the accident ? A. Shortly before 7 :00 o 'clock. 

Q. You did not see any of the stevedores come 
on then, did you, of the next gang? 

A. No. Some of them standing outside the gate 
but they didn't come inside. 

Q. You did not talk to them I A. No. 

Q. Unless you made a careful inspection of the 
top where these dogs came over and the pins are 
put into the dogs, you would not be able to tell from 
the deck nor from the next deck whether these dogs 
or pins were properly locked there ? 

Mr. Licking: I object to that on the ground it 
is argumentative, calling for the conclusion of the 
witness. 

Mr. Kay: Well, again, he is your witness. You 
qualified him as an expert to be able to determine 
from observation these conditions and he has been 
on other ships with this same [21] kind of tank top. 

Mr. Licking: If you ask him a direct question 
I probably won't object to it. That question is ob- 
jectionable. 



62 United States of America vs, 

(Testimony of Claude Bowers.) 

The Court : Can't you ask him a question, Would 
he be able to determine that? 

Q. (By Mr. Kay) : From standing on the next 
deck could you tell whether these dogs were properly 
locked and whether the pins were on? 

A. Standing on the top deck, well, you could 
not, no. 

Q. Standing on the bottom, on the same deck 
from which the door swings up, could you tell? 

A. You could see from there, yes. 

Q. That is ten feet high, isn't it? 

A. It is ten feet, that is all. 

Q. Does it come out over the edge, that is, the 
dog? A. The dog comes right over the edge. 

Q. Where does the pin fit? 

A. Right behind the hook. 

Q. You would not be able to see the pin, would 
you? A. Yes, you can see the pin. 

Q. How did you hook them on when you came 
on there? 

A. What do you mean, hook what on? 

Q. The dogs on these hatch doors. How did you 
hook the doors up there? 

A, All they do is put the pin on the top there. 
They are [22] there all the time. 

Q. You pull the door open with the ship's gear, 
don't you? A. Yes. 

Q. And that puts it upright ? A. Upright. 

Q. That is ten feet above the deck, the top of it, 
the top surface? 

A. Above that portion of the deck, yes. 



Arrow Stevedoring Company 63 

(Testimony of Claude Bowers.) 

Q. How are the hooks fastened on? 

A. There is a stanchion there that comes out a 
short ways there. They hook onto that. 

Q. Did you see that done % A. Yes. 

Q. Do you know who in your gang did it? 

A. I do. 

Q. Wlio was it ? 

A. They are both in court now. 

Q. How did they do it? From the deck? 

A. From the deck. 

Q. They could not reach ten feet? 

A. One man lifted another man up and put him 
on top to reach. 

Q. That was done on both sides in there? 

A. Yes. 

Q. And you were right there at the time? 

A. I was. [23] 

Mr. Licking: Comisel, may I interrupt just a 
moment ? 

Mr. Kay: Certainly. 

Mr. Licking: Judge Roche is familiar with the 
locking device. There is an exhibit some place in 
the case that will show the locking device. 

The Clerk: The exhibits are before the Circuit 
Court. 

(Discussion between counsel as to diagrams 
of hooks.) 

Q. (By Mr. Licking) : Can you draw that hook 
out there so the Judge can see it? Assuming that 
this is the side view of that hatch door as it sits up 



64 United States of America vs. 

(Testimony of Claude Bowers.) 

on deck, can you put the hook on there as it would 

be? Where is that locking pin? 

A. It is in the rear here. 

Q. Draw the other one right alongside there. 

Mr. Kay: There is a pin on that side, is that 
right ? 

The Witness : This door does not lean that way. 

Q. (By Mr. Kay) : Don't the two doors open 
this way as we have them roughly drawn? 

A. One of them falls at an angle, lays at an 
angle. 

Q. Did the port one lay at an angle? 

A. No, the starboard side. If we draw it over 
here, that would be more like it. It would be at an 
angle like that (indicating). 

Q. This is the starboard that leaned in? 

A. That is right. 

Q. We have them backwards on this diagram. 
We will mark this [24] for identification. That is 
an awfully crude drawmg. Judge. 

The Court: This is the open hatch on this side? 

Mr. Kay: That is right. 

The Court : These are the two pins that hold the 
hooks ? 

The Witness: That hold the hooks. 

Q. (By Mr. Kay) : And those are on the inside 
between the two covers as they come up? 

A. Yes, in one way they are between the two 
covers. 



Arrow Stevedoring Company 65 

(Testimony of Claude Bowers.) 

Q. It would be pretty difficult to see those pins 
when they are up between the two covers unless you 
got right up and looked at them ^. 

A. If you got right in and looked at them. 

(The drawing in question was thereupon 
marked Respondent Arrow Stevedoring Com- 
pany Exhibit A for identification.) 

Mr. Licking: Rather than have it marked for 
identification, I will offer it at this time. 

Mr. Kay: We will offer it. It is just as well. 
The Court : Mark it in evidence. 

(The document referred to was thereupon re- 
ceived in evidence as Respondent Arrow Steve- 
doring Company's Exhibit A.) 

Mr. Kay: If the Court please, I would like to 
have the witness refer to his testimony on page 220, 
starting with line 24 and to line 11 on page 221. Will 
you read that to yourself, please? 

(The witness did as requested.) [25] 

Q. (By Mr. Kay) : At the time of the last trial, 
when you testified in connection with this matter, 
you testified as follows, did you not? 

Mr. Licking: If the Court please, I object to a 
reading of the testimony. It is not based upon any 
question. He has not asked the witness for it. He 
has a right to read the testimony if it is impeaching 
and if he has asked the question, but he hasn't a 
right to ask the witness merely to read something 
and then proceed to read it aloud himself. 



66 United States of America vs. 

(Testimony of Claude Bowers.) 

Mr. Kay : Very well, we will do it the other way, 
your Honor. 

Q. The fact is, isn't it, that this hatch, the hooks 
and so on that go in there, appeared to you to be 
in a safe condition, that is, the port hatch, when you 
opened it? 

Mr. Licking: To which I object on the ground 
it has already been asked and answered. 

Mr. Kay: I noticed some other testimony here, 
your Honor. This is some other testimony. It is not 
what we refer to in the last question. 

Mr. Licking: Is it prior or subsequent to that 
place you referred to in the other question? 

The Court : It is answered over on the following 
page. 

Mr. Kay: Up to line 12 on page 221, your 
Honor. I would like to ask it in the form I did 
before, your Honor, because it simply facilitates 
things here. It must be remembered Mr. [26] Lick- 
ing is putting this man back on the stand, and I 
think, to keep the record straight in this case, we 
are perfectly justified in asking the question in this 
way. 

Mr. Licking: The Court has the testimony be- 
fore it, in any event. You are going over something 
that is before the Court. If you wish to, I will stipu- 
late you may read all the examination. 

Mr. Kay: I don't want to read all the examina- 
tion. I have a purpose in reading it. 

Mr. Licking: Wliat is the question? 



Arrow Stevedoring Company 67 

(Testimony of Claude Bowers.) 

The Court: He asked liim wlieu he opened the 
doors did they appear to he in safe condition. 

Mr. Kay: That is right, whether the port hatch 
appeared to be in a safe condition when you 
opened it. 

The Witness : It appeared to ])e, until you looked 
at it, tried to get the hooks into it. 

Q. (By Mr. Kay) : It appeared all right to you, 
so that you left it in that condition so far as the 
door is concerned, is that right? 

A. There was nothing we could do about the 
door. 

Q. Well, but it appeared all right to you, didn't 
it ? A. Prom a casual look. 

Q. You testified at the last trial as follovv^s: 

''Q. Did you notice at that time whether 
this appeared to you to be in safe condition, the 
port hatch, when you opened [27] it? 

**A. It appeared all right, yes. 

'*Q. If it had not appeared all right, you 
certainly would not have left it in that condi- 
tion. You were concerned with the safety of 
the men? 

'^A. We didn't leave it in that condition. 

"Q. What did you do? 

"A. We left it for the night crew to trim 
the gear so we could work in the hatch. 

"Q. You say you did not leave it in that 
condition. What do you mean by that? 

"A. The hat<3h was all right. 



68 United States of America vs. 

(Testimony of Claude Bowers.) 

*'Q. The hatch was all right when you left 
it, is that correct? 

"A. Yes, absolutely." 

You so testified the last time, didn't you? 
A, I said it looked all right. 
Mr. Kay: That is all. 

Ml'. Resner: I was wondering whether I was in 
the case. Do you mind, Mr. Licking? 
Mr. Licking : Not at all. 

Cross-Examination 
By Mr. Resner : 

Q. Mr. Bowers, just so there will be a picture 
of how this happened, I have drawn a sketch. As 
I understand it, these tank tops fit on hinges at the 
bottom of the compartment [28] and lift up and 
come together inboard in just about the opposite 
way that a sidewalk elevator opening would open ? 

A, The same. 
M.iQ. The same construction, but whereas a side- 
walk elevator opening comes out, these two come 
inboard, is that right? A. Yes. 

Q. The way this ship is constructed the bulk- 
heads extend far enough so that when these tank 
tops come up, they sort of lean back against the 
bulkheads? A. Yes. 

Q. And at east end of the bulkhead, on both the 
forward and after end, are two hooks for each tank 
top, is that correct? A. Yes. 

Q. As I understand it, the starboard tanktop or 
the one in which your gang worked the night before 



Arrotv Stevedoring Company 69 

(Testimony of Claude Bowers.) 
the accident leaned back so that by gi-avity it would 
to some extent rest against this bulkhead protru- 
sion, is that right? A. Yes. 

Q. And then the hooks would come over on the 
starboard side and fit exactly over the tanktop so 
it would secure it and then the pin would go through 
those hooks on the starboard side, is that right? 
A. Yes. 

Q. And these hooks were about eight inches or 
so in length, is that correct, that went over the 
tanktop? [29] 

A. I don't know exactly. They was in that neigh- 
borhood, though. 

Q. And these pins, as I understand it, were on 
chains? A. Chains. 

Q. And they were fastened to the bulkhead, and 
when they were out of place, they would hang loose 
on the chain? A. Yes. 

Q. When you would ])ut them through, they 
would still be hanging on tJie chain but the point 
would go through the flange and thus secure the 
hook? A. Yes. 

Q. And that w^as the way it was on the star- 
board side, the good side? A. Yes. 

Q. On the port side the tank top was almost 
perpendicular, that is, it was straiglit up and down 
so that there wasn't any gravity which v/ould hold 
it in place ? A. It was straight up. 

Q. In other words, unless there was something 
to secure it, it would fall v/ith any movement, is 
that right? 

A. I don't know whether it would fall or not. 



70 United States of America vs. 

(Testimony of Claude Bowers.) 

Q. In any event, let us put it this way: It was 
straight up and down ? 

A. It was straight up and down. 

Q. As distinguished from the one on the star- 
board side. As I [30] understand it, the hook on 
the after part of the port tank top was bent, is that 
right. A. I wouldn't say which one it was. 

Q, One of the hooks was bent so that it would 
not fit over the tank top, but the edge of the hook 
would just rest at the edge of the tank top, is that 
correct *? 
. A. It came down far enough to hold it. 

Q. It <?ame down, ])ut the pin would not go in? 

A. Not all the way. 

Q. Not all the w^ay, so there was no pin to secure 
it? A. Not with a pin. 

Q. Tlio pin would not go through to secure it? 

A. No. 

Q. On the other hook on that port tank top, the 
pin was missing completely, is that right? 
r.A, You are referring to two different tank tops. 

Q. I am referring to the port tank top. There 
are two hooks on the port tank top; one was bent 
so it would not go all the way in through. 

A. One was sprung. 

Q. One was sprung, and the other had the pin 
missing ? 

A. They had only one missing. One was missing 
and one bent pin. 

Q. That is what 1 am saying. One was bent and 
one was missing? 

A. You couldn't get it all the way through. [31] 



Arrow Stevedoring Company 71 

(Testimony of Claude Bowers.) 

Q. Is that the true picture of what existed thei-e ? 

A. Yes. 

Q. As I understand it, in t]ie middle of these 
tank tops there is a ring which you hook on to 
lift them up with the falls so you can lean them 
against the bulkhead before you fasten them? 

A. Yes. 

Q. It would have been possible to lash those two 
hooks together so the two tank tops would be lashed 
together? A. Yes. 

Q. But there wasn't any cable on the ship so that 
could not be done? 

A. There was lots of junk around there but we 
had no access to it. 

Q. The general rule is w^hen you come aboard 
a ship the Navy is supposed to rig the gear; the 
stevedores are not supposed to touch it? 

A. That is their job. 

Q. That is their job, but with a casual look, tMs 
tank top, if you looked at it without examining it, 
it seemed to be all right ? 

A. If you just looked at it. 

Q. If you just looked at it, it looked all right. 

A. Yes. 

Q. During the course of the operation you went 
to the Navy lieutenant in charge when you were 
about ready to discharge [32] these em}>ty ammuni- 
tion cases from the port side and told him you were 
ready to go to work on the port side and for him to 
lash the tops? 

A. I told him to get the gear ready for us to 
go down there. 



72 United States of America vs. 

(Testimony of Claude Bowers.) 

Q. And he said he did not have the gear? 

A. He said he didn't have the men available. 

Q. In any event, you knocked off at 6 :00 o'clock? 

A. That's it. 

Q. Your men did not even go in the port side 
where this accident happened? 

A. We didn't work in there at all. 

Q. The next night, the night of the accident, 
you came back at 7:00 o'clock? A. Yes. 

Q. You heard about the accident? 

A. Heard about it. 

Q. You saw now the two tank tops lashed to- 
gether and the two rigs were held together by 
means of a cable? A. At night, yes. 

Q. They lashed the tank tops, is that right? 
• A. Yes. 

Q. They couldn't lash the tank tops before? 

A. If they had the men, they could have. 
: Q. That was the Navy's job, wasn't it? 

A. Yes, sir. We don't do that. [33] 

Q. In other words, if they had good cable aboard, 
and they had been taking care of their job, they 
would have lashed those tank tops before this acci- 
dent happened? 

Mr. Licking: To which I object on the ground 
it is purely argumentative, has nothing to do with 
the direct testimony given by the witness, and is 
an interrogation on the field of the Navy's duty, to 
which the witness is not competent to testify. 

The Court : You have brought out the fact. 

Mr. Resner: I will pass that, then. 



Arrow Stevedoring Company 73 

(Testimony of Claude Bowers.) 

Q. In any event, when you came back that night 
after the accident in which Mr. Mitchell was killed 
and Mr. Williams who sits in court was hurt, yoU; 
found one hook was sprung or bent as it had been, 
the night before the pin was still missing ; that part 
of the gear had not been fixed? 

A. I seen the thing was lashed together with, 
wire. That is as far as we went. 

Q. You knew it was not fixed? 

A. Wlien w? came back it was fixed, yes. 

Q. It was lashed? A. It was lashed, yes. 

Q. But the hooks and the bolts were not fixed? 

A. With that wire we didn't even notice it, 
didn't pay any attention to it. 

Q. What is that? 

A. We came back to work the next night and we 
didn't bother [34] with the hooks that night. 

Q. You knew they were not fixed? 

A. We knew they were not in shape. I don't 
know whether they fixed them in the day. 

Q. You gave me a statement in which you said 
they did not fix them. 

A. Didn't fix the hooks? 

Q. Yes, and the pin in the meantime. 

A. No, I said they lashed them. I might have 
been mistaken. We didn't examine that close. They 
was over the top. 

Q. You recall when I discussed this thing two 
or three times in great detail, Mr. Bowers? 

A. Yes. 



74 United States of America vs. 

(Testimony of Claude Bowers.) 

Q. You were trying to give us a correct picture 
of just what happened there. You recall the last 
statement when you came do^vn to my office this 
month, just a few days ago*? 

Mr. Licking : Is the witness to be properly cross- 
examined with reference to written statements he is 
supposed to have given counsel? 

Mr. Resner: I think this is proper. 

The Court: I think it is perfectly proper. He 
made the statement. 

Mr. Licking: Without my examining it? 

Mr. Resner: You can come up and look at it. 
I will give you a copy of the statement and you 
can look at it. [35] 

Mr. Licking: I would like to have a copy of 
the statement. 

Mr. Resner: It is a little bit moie, Mr. Licking, 
than I have been able to secure from the Gov- 
ernment. 

Mr. Licking: That is very nice of you, but the 
point I am suggesting, your Honor, is this: May 
counsel, by going outside the field of direct exami- 
nation of the witness, create a field for cross-exami- 
nation, which has been done here, and then after 
creating the field by questions outside the direct 
examination, proceed to impeach the witness in the 
field outside? That is just what has been done here. 

Mr. Resner: I am only doing it for this reason. 
Judge, and I am concerned with the question of 
approximate cause, and I am presenting my case 
with that thought in mind. 



Arrow Stevedoring Company 75 

(Testimony of Claude Bowers.) 

Mr. Licking: If you are taking the witness for 
that purpose as your own rather than on the field of 
cross-examination, I have no objection to the witness 
testifying to anything, but this is not proper cross- 
examination. 

Mr. Resner : I think so. He is your witness. 

Mr. Licking: This has to do with the next day. 
This has to do with the condition that existed after 
the accident happened. It hasn't conceivably any- 
thing to do with the direct testimony given by the 
witness. I object on that gromid. 

The Court: When did this occur? 

Mr. Resner: The following day, right after the 
accident. 

The Court: What relation has that to the 
accident? [36] 

Mr. Resner: It shows the liability of the Navy, 
and it shows their knowledge. It shows that they 
rigged the gear after the accident by lashing this 
defective tank top to the good tank top, and it shows 
that they did not fix the pin, and it merely, so far 
as I am concerned, proves definitely the imseaworthi- 
ness of the ship and the approximate cause of the 
accident in which Mr. Mitchell was killed. 

The Court: I think we are agreed that we will 
allow the testimony. ■.; 

Mr. Licking: I haven't any objection to the 
witness testifying to that, but I respectfully again 
call your attention to the fact that it is not in the 
field of cross-examination. It is twelve hours after 



76 United States of America vs. 

(Testimony of Claude Bowers.) 

the accident and does not concern anything about 

which the witness has testified. 

Q. (By Mr. Resner) : Mr. Bowers, the fact is, 
according to this statement, they lashed it after the 
accident? A. They lashed it afterwards. 

Q. But did not fix the hooks and pins? 

A. I wouldn't go in there until it was fixed. 

Q. As I understand it, you men would not go 
in afterwards until it was lashed ? A. No. 

Q. Because it was unsafe gear? 

A. The way the gear was leaning — take the over- 
head — ^and they do that all at one time. But the 
main reason we didn't go in [37] the hatch was on 
account of the overhead, but that takes in the tank 
txDps and all. 

Q. Certainly the way you were pulling the cargo 
out with the falls, unless that tank top were lashed 
or secured it would be dangerous ? 

A. Either that would be dangerous, if the fall 
wasn't directly in the middle of the ship — then there 
is a possibility it would be all right — but the way 
the gear was laying there, you would knock every- 
thing down. 

Q. Without it being secured by hooks and pins 
or being lashed? A. The gear the way it was. 

Q. Is my statement right? 

A. Yes, the way the gear was laying. 

Q. There was a whole hour that elapsed between 
the time you left the shij) and the starting of the 
day gang with which Mr. Mitchell was working 
when he got hurt? 



Arrow Stevedoring Gompcmy 11 

(Testimony of Claude Bowers.) 

Mr. Licking": I object to that as argumentative 
and a misstatement of tlie witness' testimony. 

Mr. Resner: Is that right, Mr. Bowers'? ■ 

Mr. Licking: That is a misstatement of the wit- 
ness' testimony. 

The Witness: Let him say the question again. 

Q. (By Mr. Resner) : You knocked off at 6:00 
o'clock in the morning? 

A. No, the gangs did. I stayed there until 7 :00. 

Q. The gang knocked off at 6:00 o'clock; the 
next gang came on at 7 :00 ? A. 7 :00. 

Q. During that hour period no stevedores worked 
the ship? 

A. No stevedores worked the ship. 

Q. But the crew and the Navy officers were still 
aboard ? A. Yes. 

Mr. Resner : That is all. 

Redirect Examination 

By Mr. Licking: 

Q. During that period of time were the Navy 
crew or the Navy officers or any of them in this 
hold? A. I don't know. 

Mr. Kay: Just a moment. I object to that on 
the ground no proper foundation has been laid. 
This witness is not shown to have sat there or re- 
mained in this hatch for an hour. 

Mr. Licking: What is this business of founda- 
tion? I asked a question. Read the question, Mr. 
Reporter. 

(Question read.) 



78 United States of America vs. 

(Testimony of Claude Bowers.) 

Mr. Kay: Your Honor, there is no foundation 
laid there. How do we know he was there? He 
does not sit there for an hour to see if the Navy 
crew come there. 

The Court: The answer is innocuous. He says 
he doesn't know. 

Mr. Licking : I thought he said, * ' No, ' ' yo^.ir 
Honor. 

The Court: He said he didn't know. [89] 

Mr. Kay: I will withdraw the objection. 

Q. (By Mr. Licking) : At the time the crew 
under your direction raised this hatch cover, the 
condition of the hatch cover and the condition of the 
gear, as I understand your testimony, made that 
portion of the hatch unsafe to work? 

A. Yes, sir. We didn't work the hatch. 

Q. That is the reason you did not work the 
hatch. Will you state whether or not in your opin- 
ion at that time it was unsafe to work? 

Mr. Resner: We can stipulate to that now, I 
think. 

.. Q. (By Mr. Licking) : Do you understand my 
question ? 

Mr. Kay: We will object to that as calling for 
the 

Mr. Licking: We have one counsel objecting 
and the other counsel stipulating. 

Mr. Kay: I object to that, if your Honor please, 
on the ground that that is the very thing the Court 
has to determine. That is asking the witness to 
give an opinion on the very issue that the Court 
must determine. 



Arrow Stevedoring Company 79 

(Testimony of Claude Bowers.) 

Mr. Licking: I asked the witness to give an 
opinion on whether or not a condition is safe for 
work which he has testified he has had 20 years of 
experience on, and which he at that time was in 
the official position of supervising for the defend- 
ant the Arrow Stevedoring Company, the impleaded 
respondent. I think the question is perfectly proper. 

The Court: I must confess I do not know what 
you are [40] getting at there. What was unsafe? 

Mr. Licking: I asked him if the number 9 
hatch 

Mr. Resner: No. 4, Mr. Licking. 

Mr. Licking: I asked him if the No. 4 hatch, 
where this cover was lifted, and the accident after- 
ward occurred, was, at the time he raised it, unsafe 
in his opinion. 

The Court: Well, if it fell down obviously it 
was not safe. 

Mr. Kay : I know what Mr. Licking is getting at. 
He wants to show knowledge on the part of this 
stevedoring boss that he at that time thought it was 
safe or unsafe. 

Mr. Licking : Why can 't I show it % That is what 
I want to show. 

Mr. Kay: Very well. On my cross-examination 
I believe I have shown that he thought it was per- 
fectly safe. 

The Court: Judge Roche and I will have to 
weigh that testimony. 

Mr. Licking: You and Judge Roche may have 
to weigh it, your Honor, but I submit that I am 



80 United States of America vs. 

(Testimony of Claude Bowers.) 

entitled to ask this witness if in his opinion the 
hold under this port hatch was a safe place to work 
after it was raised and secured as he has described 
it there. That is the question I asked him and I 
think I am entitled to an answer to the question, 
if in his opinion it was safe at that time to work. 

Mr. Kay: He is going back on direct examina- 
tion, your Honor, [41] and asking this witness 

Judge Goodman: So far as I am concerned, let 
him answer the question. 

Judge Roche : He may answer. 

Q. (By Mr. Licking) : Do you understand the 
question 1 A. Wliat is the question *? 

The Court : I suggest that you ref rame the ques- 
tion and ask it directly. 

Q. (By Mr. Licking) : Why didn't you work the 
port hatch of No. 4 that night after you raised it? 

A. The condition of the gear, the way the gear 
was sitting, the overhead gear. 

Q. The condition of the overhead gear? 

A. The condition of the overhead gear, yes. 

Q. Did the condition of these devices to hold 
the hatch cover up have anything to do with your 
decision not to work it ? 

A. Well, they would not, to a certain extent. 

Q. I am just asking you if they did or did not ; 
did you consider that factor in the case? 

A. The only thing I took into consideration at 
that time was the overhead. That is the first thing 
you consider in an operation of that kind. 



Arrow Stevedoring Company 81 

(Testimony of Claude Bowers.) 

Q. (By the Court) : Will you answer this ques- 
tion : Did you quit work there because of the pin ? 

A. No, I quit work on account of the overhead 
gear. [42] 

Q. That is what caused you to quit work? 

A. That is what caused me to quit work. 

Q. (By Mr. Licking) : When you reported the 
condition to O'Shea, the next man on the job, who 
took over after you, did you mention to O'Shea 
the pins as well as the gear ? 

A. I told him one of them was sprung. He 
couldn't get it in place properly. 

Q. Did you tell him the other one was missing? 

A. Yes. 

Q. You said this, from a casual glance, looked 
all right. By that do you mean these locking devices 
and pins looked all right at a casual glance? 

A. Yes, if you were on top of the hatch they 
w^ould look all right. 

Q. How long did you say you had been a 
stevedore ? A. Approximately 25 years. 

Q. Were you wall^ing boss before you were a 
foreman? A. No, that is all the same job. 

Q. Who has immediate charge of the gang work- 
ing the hatch? A. The gang boss. 

Q. Who was the gang boss on the shift next ? 

A. I don't recall his name. I don't know his 
name. 

Q. Wlio was the gang boss on the next shift, the 
gang boss when the accident occurred? Was it a 
man by the name of Larsen? 



82 United States of America vs. 

(Testimony of Claude Bowers.) 
A. Yes, Larsen was his name. [43] 

Q. Have you held that position? Are you 
familiar with the duties of that position also ? 

Mr. Resner: I submit, your Honor, that is ir- 
revelant. 

Mr. Licking: Do you think it is? 

Mr. Resner: Certainly. 

Mr. Licking : I will take a ruling on the question 
on its relevance, the duties of the man who has 
immediate charge. The record will show that Larsen 
testified that he himself did not go down into the 
hold, that he merely looked down from the top be- 
fore sending his man down. 

The Court: Who was Larsen? The other boss? 

Mr. Licking : Larsen was the other foreman. 

Mr. Resner: Larsen was the gang boss. This 
gentleman was the walking boss in charge of more 
than one gang. The gang boss in in charge of one 
gang. 

Q. (By Mr. Licking) : I asked you if you had 
ever been gang boss before you became walking 
boss, not on this particular job, but on other jobs. 

A. On other jobs I have some, yes. 

Q. Are you familiar with those duties also? 

A. Yes. 

Q. Familiar with what proper stevedoring prac- 
tice in that respect is ? A. Yes, sir. 

Q. Can you state whether or not before sending 
the crew down [44] in the hatch it is or is not proper 
practice for the man who has charge of them to 



Arrow Stevedoring Compcmy 83 

(Testimony of Claude Bowers.) 

examine the gear and also the devices, such as these 

hatch covers and the devices to hold them in place? 

Mr. Resner: I submit, if your Honor please, 
that that is irrelevant and incompetent to the issue 
here involved. The only question, as I see, is the 
unseaworthiness of the vessel and the approximate 
cause. 

Mr. Licking: He has testified that at a casual 
glance from the top this looked all right. Larsen 
says that is all he gave it, was a casual glance from 
the top, and I want to laiow if Larsen fulfilled his 
duties in taking a casual glance from the top before 
going down into the hold. 

Mr. Resner : This is not the witness of whom to 
ask that question. 

Mr. Licking: Shall I ask Larsen if he properly 
performed his duties ? 

Mr. Resner: If your Honor please, the proper 
way to ask that question is of an expert in the steve- 
dore business — not that Mr. Bowers does not know 
his work. He had a lot of experience. But he was 
a walking boss and not a person who would make the 
determination of what the gang boss of any particu- 
lar gang should or should not do. 

Mr. Licking : He had been a gang boss. He said 
he was familiar with the practice in that respect, 
and I submit he is qualified by 25 years of experi- 
ence to answer the question. [45] 

The Court : Let the witness answer the question. 

The Witness: If I was running the gang, I 
would have been down there when they changed 
over. That is the only opinion I can give. 



84 United States of America vs, 

(Testimony of Claude Bowers.) 

Q. (By Mr. Licking) : Do you think it is proper 
practice before sending the gang down to satisfy 
yourself from the top of the hatch as to conditions 
below? A. No, I do not. 

Mr. Resner: I object to that as a conclusion of 
the witness. 

Mr. Kay : I ask that the answer be stricken. 

The Court : What do you mean by a glance from 
above ? 

Mr. Licking: Well, just an inspection from 
above. Larsen has already testified that he did not 
go doA\^i. Tliat is in the record. 

The Court : He made his inspection from the top ? 

Mr. Licking: He looked from the top and it 
looked all right from the top. This witness has said 
it looked all right from the top. I want to know 
if the man in charge of the men going down there 
has properly discharged his duty by just looking 
from the top, or if he should go down and see what 
conditions are before he puts his men to work. 

Mr. Resner: I object to that on the groimd it 
is not within the issues of the case. What has that 
got to do with approximate cause and the unsea- 
worthiness of the ship? [46] 

Mr. Licking: The whole thing is this: Counsel 
seems to regard that — I do not think so — unsea- 
worthiness of a ship is something that works by 
itself. 

The Court: There is merit in my opinion to Mr. 
Resner 's objection because how are you going to 
tell what the extent of the contribution is? A man 



Arrotv Stevedoring Company 85 

(Testimony of Claude Bowers.) 

might not have performed his duty in precisely 
doing everything some stevedore would do, but 
would that make the stevedoring company the sole 
proximate agency, jDut upon its shoulder the sole 
proximate blame for the accident? 

Mr. Licking: I am not necessarily limiting the 
case to proving sole proximate cause on the prrt 
of the stevedoring company, but certainly it goes 
to show that what their agents did was a contrib- 
uting factor. The libelant is not cross-respondent 
here. The workmen are not the cross-respondent. 
The Arrow Stevedoring Company is. I am entitled 
to show whether or not the Arrow Stevedoring Com- 
pany's walking bosses discharged their duty, but 
whether Larsen, the man in charge of this particular 
gang, discharged his duty, whether he did properly 
stevedore the ship. 

Mr. Kay: That is a pretty broad thing here, 
your Honor. We have one walking boss here that 
might have done something in detail and another 
one that may have made the inspection that was 
proper, and I think it is putting this witness in 
the position of being an expert for which he is not 
really qualified in [47] that regard. He is not a 
safety engineer. He is not the officer or agent of 
the stevedoring company with respect to certain 
duties that they are required to do. I think that 
is getting pretty far afield here. 

Mr. Resner: You run into the whole question of 
what duties are imposed upon stevedores by way 
of inspecting gear. 



86 United States of America vs, 

(Testimony of Claude Bowers.) 

The Court: He might have inspected from the 
top and under certain conditions an inspection from 
the top might have been sufficient. That opens up 
a pretty big field, doesn't it? 

Mr. Licking: I understood the witness to say it 
looked safe from the top, but from the bottom it 
could be observed it was not safe. That is, the pins 
were not in there. 

Q. Was that your testimony? A. It was. 

Mr. Kay: He did not so testify, your Honor. 
He said from the bottom he could see whether the 
pins were in. This question is whether he thought 
it was misafe or not. 

Mr. Licking: I did not ask that question. 

Mr. Kay: You used the word "safe." 

Mr. Licking: Not now I didn't use it. I just 
asked if it was proper practice for the man directly 
in charge of the gang who went into the hatch to 
go into the hatch to make an inspection to see what 
conditions were before he put his men in there. 

Mr. Kay: I object to that on the ground no 
proper [48] foundation has been laid, incompetent, 
irrelevant and immaterial. 

Mr. Licking: Well, if after 25 years' work and 
having held the same position himself 

The Court: Let him answer. 

Q. (By Mr. Licking) : Do you understand the 
question ? 

A. That all depends on the situation. 

Q. Well, in this particular situation that there 
was there. 



Arrotv Stevedoring Company 87 

(Testimony of Claude Bowers.) 

Mr. Kay: Just a minute. 

Mr. Licking: The particular situation that was 
there when you left the job witli the hatch in that 
shajDe. 

The Court: The difficulty is you did not permit 
the witness to conclude his answer. 

(Question and answer read.) 

The Witness : That all depends on the situation. 
This man might have been busy on deck at the time 
those fellows were there, and if anything was wrong, 
somebody would notify him below. It is a long ways 
down there. It takes you five minutes to get down 
to the bottom of that ship. You could only see 
the square of the hatch here. 

Q. You mean in any other ship you could see 
the whole operation from the top? 

A. It wasn't so high. There was so much space 
between the cargo and the top of the hatch. 

Q. On this particular ship you could not see the 
condition of [49] the gear and the hatch covers 
down below from the top, do you mean? 

A. You could see it from the top. It appears 
from the top it would look all right. It is like an 
elevator shaft, and you couldn't see if there was 
anything wrong or not from the top. 

Q. I asked you if imder those circumstances it 
was or was not proper practice for the man in 
charge of them to make an inspection down there 
before he sent them down to work. 



88 United States of America vs. 

(Testimony of Claude Bowers.) 

Mr. Resner: If your Honor please, I object to 
that on the ground that calls for a conclusion, and 
that is one of the questions before this Court. Cir- 
cumstances vary according to the particular case. 
Mr. Licking is asking the witness for an opinion 
on a question of law. 

Mr. Lickmg: I do not think it is a question of 
law. It is a question of proper practice in his own 
trade. 

The Witness: It is too broad there. I couldn't 
say that. Where one man would another man would 
not. He would be right whichever way he did it, 
in a situation the way that ship is laid out there, 
because it was about five to eight — well, I would 
say a man of his age it would take more than five 
minutes for him to climb down there. I would say 
he cotUd down there in a half hour after he got 
things started on the deck. That is where you 
usually start, on the deck of the ship. By the time 
he got down there to where the cargo was, through 
all the quarters, it would take quite a while to get 
there. [50] 

The Court: Are we going to conclude with this 
witness ? 

Mr. Licking: That is all. I have no further 
questions of this witness. 

The Court: Is that all of the witness? 

Mr. Kay: That is aU. 



Arrow Stevedoring Company 89 

KASIMER ANZULOVICH 

was called as a witness on behalf of the United 
States, and being first duly sworn, testified as 
follows : 

Q. (By the Clerk) : Will you state your name 
to the Court? A. Kasimer Anzulovich. 

Direct Examination 

By Mr. Licking: 

Q. Mr. Anzulovich, are you a stevedore? 

A. Yes, sir. 

Q. Do you know the gentleman who was just 
on the stand? A. Yes, sir. 

Q. Do you recall an occasion some time about 
May 28th of last year ? 

A. Well, I remember things. 

Q. Do you remember the thing? 

A. I remember how it was but I never saw the 
accident. 

Q. You never saw the accident ? A. No, sir. 

Q. The accident occurred on the day shift and 
you worked on the night shift? [51] 

A. That is right. 

Q. TVHien you worked on that night shift, what 
work were you doing on the ship yourself? 

A. We were discharging, I don't know, it was 
kind of shell empties. 

Q. During the course of your work on the night 
shift, did you finish up on one deck and have occa- 
sion to open the tank doors, below? 

A. Yes, we went to open the tank doors. 



90 United States of America vs. 

(Testimony of Kasiiner Aiizulovich.) 

Q. What time was that? 

A. I can't remember because I was so new at 
that time I didn't pay no attention. 

Q. You didn't pay any attention? 

A. I don't remember. 

Q. You do remember you unloaded the cargo, 
you came down on your night shift and opened the 
doors? A. That is right. 

Q. Who opened the doors ? Your stevedore gang? 

A. Our gang did, yes. 

Q. Did the Navy have anything to do with the 
doors? A. I didn't see no Navy. 

Q. When the doors were opened, did you notice 
anything about the fastening of the doors that was 
different than usual? 

Mr. Kay: Just a minute, again, your Honor. 
That is leading. You can ask the witness what he 
saw, but Mr. Licking [52] continuously assumes and 
puts in his question some suggestion as to what the 
witness knows. 

Mr. Licking: I asked him if he observed any- 
thing out of the ordinary in connection with the 
fastenings of the doors. 

Q. (By the Court): Was the door fastened? 

A. In my opinion 

Q. No, no. How was it fastened? 

A. I saw just two loose hooks on top — that is 
all I saw. I didn't see no pins of no kind. Just 
got the hooks on top of it. 

Q. (By Mr. Licking) : You saw no pins? 

A. I didn't see no pin. 



Arrow Stevedoring Compawy 91 

(Testimony of Kasimer Aiizulovicli.) 

Q. Did you work under it afterward ? 

A. I told you, your Honor, I was new. I had 
my partner, an old stevedore, a walking boss and 
the gang boss wanted us to use scows about 8 foot 
by 5 foot to go down there. My partner went up- 
stairs and looked for the foreman and told him he 
wants nets to put that stuff in there. That is safer. 
So we used the nets after that. But the walking 
boss found out about the gear on that side, the port 
side — ^whatever he said; I didn't understand what 
it is then — and then we walked to the other place 
and we used the nets. 

Q. Did you work at all on the cargo on the port 
side*? A. We didn't work at all on that side. 

Q. You did not work at all on that side? [53] 

A. No. 

Q. But you do know the stevedore gang raised 
the hatch? A. Yes, sir. 

Q. Who hooked it up, do you recall that"? 

A. What? 

Q. Do you recall who on the job put the hooks 
on there ? 

A. I don't know. Some of us. I don't know 
which, but just raised it up and put those hooks on 
it. That is about all there is to it. There was no 
pins of no kind. 

Q. There weren't any pins, did you say? 

A. No, when we came the next evening we find 
that thing is strapped together. If they done that 
before, there would be no accident at all. 



92 United States of America vs. 

(Testimony of Kasimer Anzulovich.) 

Q. Wlien you say if they had done that before — 

A. I don't know who was su^Dposed to do it. If 
I was a foreman I would do it myself, even if the 
Navy wasn't there, for safety first. 

Q. Did you notice whether or not the pins were 
there on these locking devices ? 

A. I never noticed the pins at all. If I remem- 
ber, we got up and put those hooks down like that. 
I thought the things were standing like that, and I 
thought it was safe by itself. It was hea\'y doors 
and I never thought that dam thing would go down. 

Q. Do you yourself have anythmg to do with 
fastening the [54] hooks? A. No, sir. 

Q. You did not? 

A. No, sir. Just helped one fellow go up a little 
bit and I seen him drop the hook down. 

Q. You helped one fellow go up a little bit ? 

A. Yes. 

Q. How do you mean you helped him go up a 
little bit ? You lifted him up ? 

A. Lifted him up. It was kind of high. 

Q. Do you remember who it was you lifted up? 

A. I don't know. Some fellow. 

Q. You don't know who it was? 

A. Some stevedore that was in our gang. I can't 
remember. I was green at that time, still green. 

Q. You say you did no work at all on the port 
side of that hatch ? A. No. 

• Q. Was the door or cover to the port side of 
the hatch still up when you left the ship ? 

A. Both doors were standing like that together 
when we left the ship. 



Arrow Stevedoring Company 93 

(Testimony of Kasimer Anzulovich.) 

Q. When you left the ship ? A. Yes. 

Q. The same way as when you opened it? [55] 

A. Same way. 

Q. Was any Navy personnel in and about there 
when you were working there ? 

A. I don't remember seeing nobody down there. 

Q. Do you not remember seeing any naval per- 
sonnel down there? A. No, sir. 

Mr. Kay: No questions. 

Mr. Resner: No questions. 

JOSEPH KOKICKS 

was called as a witness on behalf of the defendant, 
United States of America, and being first duly 
sworn, testified as follows : 

Q. (By the Clerk) : Will you state your name 
to the Court ? A. Joseph Kokicks. 

Direct Examination 

By Mr. Licking: 

Q. Mr, Kokicks, you are a stevedore by occupa- 
tion? A. Yes, sir. 

Q. Do you know Mr. Bowers, who testified a 
while back % A. Yes, I know him. 

Q. Were you working on that same ship on 
May 28, 1945? A. I was right down below. 

Q. You were right down below? A. Yes. 

Q. You were on the gang that worked the No. 4 
hatch? A, Yes. 



94 United States of America vs. 

(Testimony of Joseph Kokicks.) 

Q. That night. Do you recall whether or not 
you had occasion to lift the tank covers on the night 
shift? 

A. Yes, I was going to do it myself. All the 
rest of them, and I was, too. 

Q. All the rest of them did it ? A. Yes. 

Q. Do you know about what time on the night 
shift? 

A. It was after midnight. T don't know exactly 
what time it was. 

Q. It was after midnight? 

A. We didn't have no watch. 

Q. Wlio raised the hatch doors? 

A. The winches. We hooked on and the winches 
lifted it up. 

Q. The stevedoring company crew operated the 
winches and the attachments to the door? 

A. Yes. 

Q. Do you recall how the doors were fastened 
up after they were raised? 

A. The doors, when they were raised up, were 
leaned against a bulkhead. The two flanges, when 
it comes up to rest on it, had a big dog to floj) over 
like that. It was pretty far and leaning in. I would 
say it was about that far from the bottom (indi- 
cating). [57] 

Q. Indicating about three feet from the bottom. 
You have indicated a hook almost at a right angle 
hanging over the edge? 

A. Yes, a piece of metal cut around like a hook. 



Arrow Stevedoring C&mpcmy 95 

(Testimony of Joseph Kokicks.) 

Q. Do you remember whether or not those hooks 
were equipped with any pins to hold them in place? 

A. I couldn't see any pins. If they had any 
pins, I couldn't say yes or no. 

Q. Did you have anything to do with putting 
those hooks on yourself? A. Yes. 

Q. What did you do? 

A. Just slapped them on. The door had the 
flange and we just slapped the hook on. 

Q. Did these doors have one or two hooks to 
hold them? 

A. One, I think, on each side. I don't know if 
they had a fore end and an after end, but each door 
had a hook on. I know that much. 

Q. With reference particularly to the hatch door 
for the port cover of the No. 4 hatch 

A. I didn't hear that. 

Q. I say referring now particularly to the port 
cover of the No. 4 hatch. A. The port sidet 

Q. Yes. 

A. Well, the port side, when we opened the 
hatch, the cover, [58] it was filled u]) with cans 
right to the top. We couldn't get in the hatch. 
We couldn't get in there. We crawled on our belly 
imder the doors to get down there. And then they 
said we were going to get what we call the scows, 
the slingboards. I said, ''Oh, oh," to myself. '*I 
am going home if they are going to use the scows." 

Q. When you say if they are going to use the 
scows, what are you talking about? 

A. Then I went on the deck. 



96 United States of America vs. 

(Testimony of Joseph Kokicks.) 

Q. Wait. I don't understand you. I don't know 
whether the Court does. 

A. That is a slingboard, what is called scows. 

Q. That is a board 

A. It is bigger than a regular board, much 
bigger. 

Q. What is the purpose of it? 
. A. About five feet wide and about six, a little 
over, long. 

Q. Five feet wide and six feet long? 

A. Yes. 
;; Q. What is that used for and how is it used ? 

A. They have hooks on the four corners. 

Mr. Kay: Your Honor, there were no cargo 
boards used here and we are wasting a lot of time. 
I object to this on the ground it is incompetent, 
irrelevant and immaterial. 

Mr. Licking: Let's see. The other witness testi- 
fied that there was some colloquy about the use of 
these boards rather [59] than slings. 

Mr. Resner: What difference does this make? 
This was not at the time of the accident. 

Mr. Licking : It may make some difference. This 
was before the accident. 

Mr. Resner: It is too remote. 

The Court : Well, it is a new element in the case. 
I know nothing about it. I do not know what re- 
lation it has to the accident itself. 

Mr. Licking: If the Court please, I merely in- 
tend to ask him if he used the boards. If they used 
the boards or refused to use them and they used nets. 



Arrow Stevedoring Company 97 

(Testimony of Joseph Kokicks.) 

The Court: Ask him directly. 

The Witness : We didn't use it that way. If they 
used it, I would walk off the job. But we didn't 
use it. I went to the dock looking for the walking 
boss. I said, "If they are " 

The Court: They did not use the boards, Mr. 
Licking. Let's get along. 

Mr. Licking: They did not use the boards on 
that shift, your Honor, that is true. 

The Witness: I said, "If they are going to use 
the scows " 

Q. (By Mr. Licking) : You did not use the 
boards on that shift? 

A. No, we didn't use them. 

Q. What did you use? [60] 

A. I said, "We are going to use the nets." 

Q. Did you use the nets? 

A. Yes, we used 

The Court : He used the nets. 

The Witness : And then 

The Court : You have answered the question. 

Q. (By Mr. Licking) : Did you work on the 
port side at all of the hatch? 

A. Nobody worked on the port side. 

Mr. Licking: That is all. • 

Mr. Kay: No questions. 

Mr. Resner: I have no questions. 



98 United States of America vs. 

MARTIN O'SHEA 

was called as a witness on behalf of the respondent, 
United States of America, and being first duly 
sworn, testified as follows: 

The Clerk : State your name to the Court. 
A. Martin O'Shea. 

Direct Examination 

By Mr. Licking: 

Q. Mr. Shea, calling your attention particularly 
to the date about May 28, were you working for the 
Arrow Stevedoring Company then? 
' A. Yes, sir. 

Q. Do you recall an accident having happened 
that day? [61] A. Yes, a bad one, too. 

Q. Do you recall what ship that was on? 

A. The Edgecomb, I think it was. 

Q. Do you know Mr. Bowers, who was on the 
stand here before you ? A. Yes. 

Q. What was your position? 

A. My position was day walking boss. 

Q. As such, when you came on the job, did you 
see Mh Bowers? A. Yes, I seen Bowers. 

'Q. ' Did you have any conversation with Mr. 
Bowers? A. Yes, he gave me 

Q. I beg your pardon. I just asked you if you 
had any conversation with him. A. Yes. 

Q. Did you have any conversation with particu- 
lar reference to the hold in which this accident 
afterwards occurred? A. No. 



Arrow Stevedoring Company 99 

(Testimony of Martin O'Sbea.) 

Q. He did not talk to you at all about that ? 

A. None in the world, not a word said concern- 
ing the accident. 

Q. Pardon? 

A. He didn't say a word about that hold. 

Q. He did not say a word about the hold wher^ 
the accident happened? A. No. 

Q. Did you yourself look at the hold ? [62] 

A. Went through the allej^way and saw the side 
ports uj), and I presumed it was safe to work. 

Q. You say you went through the alley ? 

A. You could see the boards, 

Q. On the alleyway ? 

A. The alleyway 'tweendecks. You can look 
through and see the boards. 

Q. 'Tweendecks. How far were you above the 
top of the hatch covering No. 4 hold? 

A. Ten or fifteen feet, something like that. 

Q. Did you look down there? 

A. No, you can't look down from there, but you 
can just see the sideboards are up and you figure 
it is safe. 

Q. From that position can you see whether they 
are safe or not ? 

A. Well, you understand any time those things 
is lifted up they are supposed to be safe. Otherwise 
they won't be up. They are supposed to be secured. 

Q, It is the job of the person w^ho lifts them to 
see that they are secured ? A. Yes. 

Mr. Kay: Your Honor, it depends on the par- 
ticular situation. 



100 United States of America vs. 

(Testimony of Martin O'Sbea.) 

Q. (By Mr. Licking) : How long have you been 
a stevedore? A. Oh, about 30 years. [63] 

Q. As I understand it, you did not make any 
personal examination of this hatch cover where the 
accident afterwards happened? 

A. No. It happened so quick I had no time to 
do anything. 

Q. That happened soon after your gang came 
on the ship? 

A= The gang came on at 7:00 o'clock. It hap- 
pened about ten minutes past seven. 

Q. You did have a conversation with Mr. Bowers 
that morning ? 

' A. Yes, that morning, but he didn't say nothing 
about it not being safe. 
' Q. He didn't say anything about that hold at all? 

A. No, not a word. 

Q. Did he tell you he had opened it during the 
night ? A. The boat was. 

Q. Did he tell you he had opened it during the 
night? A. The boat was open. 

Q. I didn't ask you that. I asked you did Bowers 
tell you he had opened that ? 

A. No, he didn't tell me he opened it. It was 
opened. That is all I know. I don't know who 
opened it, the stevedores or the Navy. 

Q. It was open when you got there ? 

A. Yes, sir. 

Q. You did not make any examination of it your- 
self to see whether it was safe? [64] A. No. 



Arrow Stevedoring Gompcmy 101 

(Testimony of Martin O'Shea.) 

Q. Why didn't you make an examination? 

A. They worked already there. 

Q. Wliat? 

A. They worked in that hatch all night, so why 
should I make an examination? It was up. The 
port side was up already. 

Q. You assumed, since it was up, that it was 
safe? 

A. It is always safe when it is up and it is se- 
cured. The Navy never opens those things up unless 
they make it secure and safe. 

Q. Do you know whether the Navy opened it 
or not? 

A. I don't know. I presume they opened it. 
They open it in the daytime because in the doytirae 
I seen them; the Navy did it. I don't know whether 
they did that night or not. 

Q. You do not know who opened it? 

A. I don't know. It was open in the morning 
when I came in. 

Q. You do not know then who opened it? 

A. I don't know even yet who opened it because 
I wasn't there. 

Q. You didn't take a look at it to see if it was 
safe or not ? 

Mr. Kay: That is objected to as asked and an- 
swered. These witnesses are his. 

Mr. Licking: These witnesses are mine to a re- 
markably limited extent. 

Mr. Resner: You called ]iim, Mr. Licking. 

Mr. Licking: Yes, I did. [65] 



102 United States of America vs. 

(Testimony of Martin O'Shea.) 

The Court : Suppose you go ahead. It is getting 
late. 

Mr. Licking: The question seemed to me to be 
perfectly proper. 

The Court : Read the question. 

(Question read by the Reporter.) 

The Court: I think the witness has answered 
that question. 

The Witness: Yes. 

Q. (By Mr. Licking) : Your answer is you did 
not look? 

The Court: He said he saw the covers were up 
and he presumed it was safe. Being up, he went 
ahead with his work. 
. Q. Isn't that right? 

A. That is right. When they ai'e open they are 
safe. That has been the practice all the way 
jthrough. We don't make an examination unless 
somebody told me. 

Q. (By Mr. Licking) : You say that is your 
practice. Do you mean that is stevedore practice? 

A. When you see those ports open 

Q. That is stevedore practice? 

Mr. Kay: Allow the witness to answer. 

Mr. Licking: I thought he had finished. 

Q. You are talking about stevedore practice? 

A. When they are up there secured, they are 
supposed to be able to work them without any dan- 
ger to anybody. 



Arrow Stevedoring Company 103 

(Testimony of Martin O'Sliea.) 

Q. That is proper practice: the duty of seeing 
that they are secure, is that on those who raise 
them? [66] 

A. That's it. Don't touch them. 

Q. In other words, whoever raises the hatch 
cover has the duty to see that it is safe? 

A. Secured. 

Q. And you relied on the fact that whoever 
raised it had secured it? A. Had secured it. 

Mr. Licking: That is all. 

Cross-Examination 
By Mr. Kay : 

Q. Mr. O'Shea, had you worked a number of 
Navy ships? A. Oh, quite a few. 

Q. And on all these Navy ships does the Navy 
allow you to go around and check everything on the 
ship ? 

A. No, they check themselves. Everything is 
checked by the Navy. 

Q. Yes, and there is very little you do 

A. Very little. 

Q. Just a minute. There is very little you do in 
the way of going around and checking every particu- 
lar piece of equipment on a Navy ship, isn't that 
right? A. That is right. 

Q. The Navy does all of that? A. Yes. 

Q. They set up the rigging for you? They gen- 
erally open the [67] hatches for you? 

A. They do. 



104 United States of America vs. 

(Testimony of Martin O'Sliea.) 

Q. And then you do not go around to see if every 
hook is in j)lace and every pin is in, do you? 

A. Surely not. 

Q. In your duties among Navy ships that is not 
a part of them, is it? 

A. Any time you want anything done you ask 
the officer on deck and he tells the sailor to do it. 

Mr. Licking: I object to that. 

Q. (By Mr. Kay) : On these Navy ships, it is 
not 3^our practice and it never has been to go around 
and examine all the hooks and pins and all the rig- 
ging there ? A. No. 

Q. The Navy is supposed to do that before you 
ever get on that f 

A. Before we ever get started. 

Mr. Licking: I object to that. 

The Court: Objection sustained as to what the 
Navy is supposed to do. 

Q. (By Mr. Kay) : What time did you go on 
that ship ? 

A. A little after 6:00. The night gang was gone 
already, and I relieved the night gang before. I 
usually get do^vn about quarter past six. He shows 
me around, tells me what hatch they're working. 
When the gang comes down at 7:00 o'clock, call 
them in. [68] 

Q. How many hatches were on this ship? 

A. There were five hatches on that type of ship. 

Q. How many were you working at this time? 

A. During the night? 

Q. No, when you went on. 

A. Four hatches. 



Arrotv Stevedoring Company 105 

(Testimony of Martin O'Sliea.) 

Q. As walking boss, you had to cover that whole 
area ? A. The whole area. 

Q. You go around and make an inspection that 
you feel is proper "? You take a look at things *? 

A. That is right. On commercial ships we do 
that possibly, but on Navj^ we seldom do. The Navy 
takes care of that. There are men to watch it, se- 
cure guys, boom, and what not. 

Q. The practice on Navy ships is you hardly 
look at any of their equipment? 

A. That is right. 

Q. In the commercial ships you take more com- 
plete charge'? A. Yes. 

Mr. Kay : That is all. 

Cross-Examination 
By Mr. Resner: 

Q. Mr. O'Shea, after the accident you saw that 
one of these hooks was bent and the pins were miss- 
ing, didn't yoM^ 

A. Yes, the safety engineer was down, exam- 
ined, took pictures, and one was out of proportion. 

Q. One was bent and a pin was missing '? 

A. Yes. To secure properly we had to use a 
turnbuckle. I don't know whether you people know 
what a turnbuckle is. Kind of hooks, and chains. 
Lashed it down. The Navy did that after the 
accident. 

Q. After the accident they lashed it I 

A. Yes, after the accident they lashed it with 
turnbuckles. 



106 United States of America vs. 

(Testimony of Martin O'Shea.) 

Q. After the accident? 

A. Sure. They always do that after the accident, 
of course. 

Mr. Kay : Mr. Licking, were some pictures taken 
hy the Navy'? It would help the Court, I think, if 
you had them. 

Mr. Licking : What do you mean ? 

Mr. Kay: The witness said some pictures were 
taken down there. 

Mr. Licking: He said something about some 
safety engineer. 

Q. (By Mr. Kay) : Were pictures taken dowTi 
there ? 

A. Yes, they measured them and everything. 

Mr. Licking: He didn't say anything about the 
Navy taking the pictures. 

The Witness: That was the Navy. 

Mr. Licking: There was a witness in the other 
case that did take them. 

Q. (By Mr. Kay) : Were some pictures taken 
there, Mr. O'Shea? 

A. I believe so. They measured those things. It 
is so long ago, you know. [70] 

Q. (By Mr. Licking) : Two years ago this hap- 
pened. Mr. O'Shea, it is a fact, isn't it, that you 
relied on the custom and practice and on what is 
proper stevedoring practice that the hatches being 
raised had been secured by whoever raised them ? 

A. That is right. 

Mr. Kay: I object to that on the ground it is 
leading and suggestive and not proper redirect 
examination. 



Arrow Stevedoring Compcmy 107 

Mr. Resner: If your Honor please, he is cross- 
examining his own witness. 

Mr. Licking: May I have the question read? 

(Question read.) 

Mr. Kay : We will ask that the answer 

The Court: Let the question and answer stand. 
Proceed. 

Mr. Licking : That is all. 

Mr. Kay : That is all. 

Mr. Licking : The same contract was in force and 
effect in this case that was in force and in effect 
In the other case. 

Mr. Kay : That is correct. 

Mr. Licking: I have here a copy. 

The Court: Is that the contract the Supreme 
Court refused to construe? 

Mr. Licking : No, it is not, but it is similar. 

Mr. Kay: It is not similar at all. 

Mr. Licking: I hope we do not have to go into 
that argument. This is the contract that was in force 
and effect. [71] 

The Court: Let that be marked in evidence. 

Mr. Licking: There is a gentleman down here 
who furnished it to me. This gentleman has custody 
of the records. 

The Court: Let it be marked subject to correc- 
tion, and if it is not correct let us know. 

(The contract in question was thereupon re- 
ceived in evidence and marked Respondent 
United States Exhibit A.) 



108 United States of America vs. 

Mr. Licking: If the Court please, that is the 
government's case. 

CERTIFICATE OF REPORTER 

I, J. J. Sweeney, Official Reporter, certify that 
the foregoing 72 pages is a true and correct tran- 
script of the matter therein contained as reported 
by me and thereafter reduced to typewriting to the 
best of my ability. 

/s/ J. J. SWEENEY. 



[Endorsed]: No. 11880. United States Circuit 
Court of Appeals for the Ninth Circuit. United 
States of America, Appellant, vs. Arrow Stevedor- 
ing Company, a Corporation, Appellee. Transcript 
of Record. Upon Appeal From the District Court of 
the United States for the Northern District of Cali- 
fornia, Southern Division. 

Filed March 10, 1948. 

/s/ PAUL P. O'BRIEN, 
Clerk of the United States Circuit Court of Appeals 
for the Ninth Circuit. 



Arrow Stevedoring Company 109 

In the United States Circuit Court of Appeals 
for the Ninth Circuit 

No. 11,880 

UNITED STATES OF AMERICA, 

Appellant, 

vs. 

ARROW STEVEDORING COMPANY, a Corpo- 
ration, 

Appellee. 

PETITIONER'S STATEMENT OF POINTS 
INTENDED TO BE RELIED ON ON AP- 
PEAL AND DESIGNATION OF PORTION 
OF RECORD TO BE PRINTED 

Petitioner adopts as points on appeal the Assign- 
ments of Error included in the Transcript of Rec- 
ord on file herein. 

Petitioner designates for printing the entire 
Transcript of Record on file herein except that, as 
to the Exhibits, the same may be considered by the 
Court in their original form. 

/s/ FRANK J. HENNESSY, 
United States Attorney. 

/s/ WILLIAM E. LICKING, 

Assistant U. S. Attorney, 
Proctors for Appellant. 

[Endorsed] : Filed Mar. 29, 1948. 



Nos. 11,519 and 11,880 

IN THE 

United States Court of Appeals 

For the Ninth Circuit 



United States of America, 



Appellant, 



vs. 



Arrow Stevedoring Company (a cor- 
poration) , 

Appellee. 



United States of America, 



Appellant, 



vs. 



Arrow Stevedoring Company (a cor- 
poration) , 

Appellee. 



On Appeals from the District Court of the United States 
for the Northern District of California, Southern Division. 

BRIEF FOR THE UNITED STATES. 



1948 

J/UL P, U'BRIEN, 

--..^ CLERK 



Frank J. Hennessy, 

United States Attorney, 

Leavenworth Colby, 
Keith R. Ferguson, 

Special Assistants to the Attorney General, 

William E. Licking, 

Assistant United States Attorney, 
Post Office Building, San Francisco, 

Attorneys for the United States. 



Subject Index 



Page 
Jurisdiction 1 

Question presented 2 

Statement 4 

Specification of error 24 

Argument : 

I. The proximate cause of the accident was the negligence 
of Arrow in sending its men to work underneath an in- 
sufficiently secured hatch cover 25 

1. The findings of negligence signed by the district 
court are clearly erroneous and should be disregarded 26 

2. Arrow was negligent in sending its men to work 
under the hatch cover when it had knowledge of 
the dangerous condition prevailing 27 

3. The United States was entitled to rely on Arrow's 
performing its duty not to expose its employees to 
known dangerous conditions on the ship 29 

4. The failure of the United States to maintain a sea- 
worthy locking device on the hatch cover was not 
the proximate cause of the accident 31 

II. Appellee Arrow is liable-over for the amounts the United 

States is required to pay libelants 3^3 

1. The United States is entitled to recovery-over of the 
full amount of the judgments in favor of libelants. . 34 

2. Even if fault on the part of the ship could be held 
to have contributed to the accident, the United States 

is entitled to partial recovery-over 38 

3. The contract did not deprive the United States of its 
right to recovery-over and expressly gave the Govern- 
ment the benefit of Arrow's compensation insurance 43 

Conclusion 47 



Table of Authorities Cited 



Cases Pages 

Aktieselskabet Cuzco v. The Sucarseco, 294 U. S. 394 40,42 

Atlas, The, 93 U. S. 302 39 

Barbara v. S. Ransom, Inc. (N. Y. Sup. Ct. Kings County), 

79 N. Y. Supp. (2d) 438, 1948 A.M.C. 1483 42 

Barbarino v. Stanhope (CCA 2nd), 151 F. (2d) 553 40 

Barrett v. City of New York (DCSD NY), 73 F. Supp. 832 31 
Bethlehem Shipbuilding Corp. v. Joseph Gutradt Co. (CCA 

9th) , 10 F. (2d) 769 35 

Bolton Castle, The (CCA 1st), 250 Fed. 403 31 

Briggs V. Day (DCSD NY), 21 Fed. 727 40, 42 

Brooklyn v. Brooklyn City R. Co., 47 N. Y. 475 35 

Brooklyn Eastern District Terminal v. United States, 54 F. 

(2d) 978, 287 U. S. 170 40 

Burris v. American Chicle Co. (CCA 2nd), 120 F. (2d) 218 41 

Chattahoochee, The, 173 U. S. 540 42 

Chicago Rys. Co. v. R. F. Conway Co., 219 111. App. 220. . . 35 
Colonial Motor Coach Co. v. New York Central Ry. Co., 

131 Misc. 891, 228 N.Y.S. 508 38 

Colorado & So. Ry. Co. v. Western Light & Power Co., 73 

Colo. 107, 214 Pac. 30 38 

Cornec v. Baltimore & 0. R.R. Co. (CCA 4th), 48 F. (2d) 

497 30 

Eastchester, The (CCA 2nd), 20 F. (2d) 357 31 

Eastern Texas Elec. Co. v. Joiner, 27 S. W. (2d) 917 38 

Egyptian, The (1910), A. C. 400 32 

Erie R.R. Co. v. Erie Transportation Co., 204 U. S. 220. .39,40,42 

Fidelity & Casualty Co. v. Federal Express Co. (CCA 6th), 

99 F. (2d) 681 38 

George A. FuUer Co. v. Otis Elevator Co., 245 U. S. 489. . . 38 
Great Atlantic & Pacific Tea Co. v. Brasileiro (CCA 2nd), 

159 F. (2d) 661 27 

Green v. War Shipping Administration (DCED NY), 66 

F. Supp. 393 42 



Table of Authorities Cited iii 

Pagas 
Grillo V. Royal Norwegian Govt. (CCA 2nd), 139 F. (2d) 

237 29 

Guy V. Donald (CCA 4th) , 157 Fed. 527 35 

Hamilton, The, 207 U. S. 398 39 

Hutchinson v. Dickie (CCA 6th), 162 F. (2d) 103 27 

Imbrovek v. Hamburg- American Steam Packet Co. (DC 

Md.), 190 Fed. 229 37 

Interborough Rapid Transit Co. v. New York, 237 App. Div. 

612, 262 N.Y.S. 388, aff'd 262 N. Y. 612, 188 N. E. 88. . . 35 

Jethou, The (DC Ore.), 2 F. (2d) 286 29 

Johnson v. Kosmos Portland Cement Co. (CCA 6th), 64 

F. (2d) 193 27 

Jones V. Waterman SS Corp. (CCA 3rd), 155 F. (2d) 992 42 

Knippinberg v. Lord & Taylor Co., 193 App. Div. 753, 184 

N.Y.S. 785 37 

Lewis Luckenbach, The (CCA 2nd), 207 Fed. 66 35 

Mars, The (DCSD NY), 9 F. (2d) 183 32 

Minneapolis Mill Co. v. Wheeler, 31 Minn. 121, 16 N. W. 698 35 
Missouri, Kansas & Texas Ry. Co. v. Missouri Pac. Ry. Co., 

103 Kan. 1, 175 Pac. 97 38 

Nashua Iron & Steel Co. v. Worcester & Nashua R.R. Co., 

62 N. H. 159 37 

New York, The, 175 U. S. 187 31 

Newell Bridge & Ry. Co. v. East Liverpool Traction & Light 

Co., 7 Ohio App. 241 35 

Oceanic Steam Navigation Co. v. Cia. Transatlantic Espanola, 

134 N. Y. 461 38 

Pan-American Petroleum ;T. Co. v. Robins Dry Dock & R. 

Co. (CCA 2nd), 281 Fed. 97, certiorari denied 259 U. S. 

586 30, 35 

Pfau v. Williamson, 63 111. 16 35 



iv Table of Authorities Cited 

Pages 
Rederii v. Jarka Corp. (DC Me.), 26 F. Supp. 304, 110 

F. (2d) 234 42 

Redwood, The (CCA 9th), 81 F. (2d) 680 33 

Samovar, The (DCND Cal.), 72 F. Supp. 574 42 

Seaboard Stevedoring Corp. v. Sagadahoc SS Co. (CCA 9th), 

32 F. (2d) 886 30, 35 

Severance, The (CCA 4th), 152 F. (2d) 916 27 

Severn v. United States (DCSD NY), 69 F. Supp. 21 42 

Standard Oil Co. v. Robins Dry Dock & R. Co. (DCED 

NY), 25 F. (2d) 339 \ 35, 36 

Susquehanna, The (DCED NY), 176 Fed. 157 37 

Tampico, The (DCWD NY), 45 F. Supp. 174 39, 42 

Thoina.s P. Beal, The (DCWD Wash.), 295 Fed. 877 29 

United States v. Wallace (CCA 9th), 18 F. (2d) 20 36 

Vanderlinden v. Lorentzen (CCA 2nd), 139 F. (2d) 995... 29 

Washington Gas Light Co. v. District of Columbia, 161 U. S. 

316 38 

Westchester Lighting Co. v. Westchester Small Estates Corp., 

278 N. Y. 175, 15 N. E. (2d) 567 41 

Statutes 
Harter Act, 46 U.S.C. 192 40 

Judicial Code, Section 240(a), as amended by the Act of 
February 13, 1925 2 

Longshoremen's and Harbor Workers' Compensation Act, 

33 U.S.C. 901 et seq 5, 39 

Public Vessels Act of 1925 (46 U.S.C. 781 et seq.) 2 

Miscellaneous 

Restatement of Restitution, Section 97 34, 37 

Restatement of Torts, Section 441 31 



Nos. 11,519 and 11,880 

IN THE 

United States Court of Appeals 

For the Ninth Circuit 



United States of America, 



Appellant, 



vs. 



Arrow Stevedoring Company (a cor- 
poration) , 
Appellee. 

United States of America, 

Appellant, 



vs. 



Arrow Stevedoring Company (a cor- 
poration), 

Appellee. 



On Appeals from the District Court of the United States 
for the Northern District of California, Southern Division. 

BRIEF FOR THE UNITED STATES. 



JURISDICTION. 

These are consolidated appeals from two final de- 
crees entered by the United States District Court for 
the Northern District of California, Southern Divi- 
sion, dismissing petitions hy the United States for 
recovery-over, in whole or in jjart, of any amounts for 
which the United States was liable to the libelants in 



two separate libels brought against the United States 
under the Public Vessels Act, 1925 (46 U.S.C. 781 
et seq.), by an injured longshoreman and the personal 
representative of a deceased longshoreman to recover 
damages for injury and death, respectively, in conse- 
quence of an accident on board a Navy vessel. 

In No. 11,519, the Williams case, the decree of the 
United States District Court for the Northern District 
of California was entered August 30, 1946 (Wms. 
R. 60).^ Notice of appeal was filed November 15, 1946 
(Wms. R. 61) and the appeal allowed December 16, 
1946 (Wms. R. 63). In No. 11,880, the Mitchell case, 
the decree of the United States District Court for the 
Northern District of California was entered August 
19, 1947 (Mchl. R. 35). Petition for appeal was tiled 
November 14, 1947, and allowed the same day (Mchl. 
R. 37-38). The jurisdiction of this Court rests upon 
Section 240 (a) of the Judicial Code, as amended by 
the Act of February 13, 1925 (as revised 28 U.S.C. 
1291). 



QUESTION PRESENTED. 

Appellee Arrow Stevedoring Company contracted 
with the Navy to load and imload its vessels. The con- 
tract provided that Arrow would carry workmen's 
compensation and public liability insurance policies 
which should waive all rights of subrogation against 
the United States. The contract further provided that 



^Hereinafter the record in the Williams case is identified by 
the abbreviation "Wms. R." and that in the Mitchell case by 
"Mchl. R." 



Arrow should remove and replace hatches without 
cost to the Government, but the actual practice was 
for the ship's crew to open and close the hatches. 
Arrow's night supervisor asked the ship's officers to 
open a certain hatch. They declined to do so because 
there were not sufficient crew aboard for the job. 
Arrow's night supervisor thereupon had his own men 
open the hatch. Arrow's men were unable to fasten 
the cover safely in the open position and Arrow's 
night supervisor either did not tell the ship's officers 
of the dangerous condition he had created or agreed 
wdth them that the stevedores would not work the 
hatch until the ship's personnel could fix it sometime 
next morning. But Arrow's day supervisor and day 
hatch boss, without any inquiry or investigation, sent 
their men to work in the hatch. The men had just 
begun to work cargo in that hatch when the cover fell, 
injuring one man and killing another. Compensation 
payments were made without award in both cases and 
the injured employee and the personal representative 
of the dead employee recovered separate judgments in 
their own names against the United States as the 
operator of the vessel. The judgment in favor of the 
injured employee gave Arrow an express lien for the 
amount of the medical expenses and compensation 
which it had paid him ; that in favor of the representa- 
tive of the dead employee did not. 

The question presented here is whether in such cir- 
cumstances Arrow is liable-over to the United States 
for the amount of such judgments or any part thereof. 



STATEMENT. 
The pleadingrs. 

To recover for injuries and death in consequence of 
an accident aboard the USS Edgecombe on May 28, 
1945, hbels were brought against the United States by 
Percy L. Williams (Wins. R. 2-10) and Edgar E. 
Reite, as Administrator of the estate of John Henry 
Mitchell, deceased (Mchl. R. 2-7), alleging that the 
injury and death involved had resulted from the neg- 
ligence of the United States. While working in No. 4 
port hatch on the vessel, Williams and Mitchell were 
struck by a falling hatch cover in circumstances here- 
after described. Although the libels did not so allege, 
at the time such injury and death occurred Arrow 
Stevedoring Company, the employer of Williams and 
Mitchell, was engaged under a general stevedoring 
contract with the United States in unloading the 
USS Edgecombe, a public vessel of the United States 
Navy. 

The United States filed answers (Wms. R. 12-17, 
Mchl. R. 8-12) and impleaded Arrow Stevedoring 
Company, the appellee in this Court, under Admiralty 
Rule 56 (Wms. R. 18-21, Mchl. R. 13-16). These an- 
swers and impleading petitions denied fault or negli- 
gence on the part of the Government and alleged that 
if any there was, it was that of Arrow, and that by 
reason of the duties which Arrow had undertaken and 
the terms of its contract, the United States was en- 
titled to recovery-over, in whole or in part, for any 
liability imposed upon the Government in favor of the 
hbelants. The answers of Arrow (Wms. R. 30-35, 



Mchl. R. 17-22) denied fault or negligence and as an 
affirmative defense alleged that it had already fur- 
nished medical care and made pajTncnts pursuant to 
the provisions of the Longshoremen's and Harbor 
Workers' Compensation Act of the value of $1855.49 
to Williams and of $1282.41 to the heirs at law of 
Mitchell. 

The stevedoring- contract. 

Arrow's contract mtli the United States contained, 
among others, the following Navy standard form 
clauses in respect of opening and closing hatches and 
of liability, indemnity and insurance (A¥ms. R. 265, 
268-269) :- 

Article 6. Opening and Closing Vessel. 

Without cost to the Government, (^ontractor 
shall remove and replace wedges, hatch bars, tar- 
paulins, hatches and beams with respect to all 
decks, l:)oth during loading or discharging opera- 
tions and to make the hatches ready for sea. 
Stevedoring Contractors are required to cover all 
hatches at their own. expense if not working at 

night. 
******* 

Article 21. Liability and Indemnity. 

(a) The Contractor shall procure and main- 
tain at all times during the continuance of this 



2There appears to be some confusion and duplication in the 
record in respect of the numbering of the clauses in question. This 
stems from the fact that the contract document included a number 
of amendments in the course of which the clauses respecting lia- 
bility, indemnity and insurance were repeated. It is not believed 
that the minor variations in punctuation are material, since the 
clauses were obviouslv intended to be the same, 



agreement a policy or policies of insurance with 
underwriters to be approved by the Contracting 
Officer insuring the Contractor against liability 
for injury to or death of any person or persons 
to an amount not less than $250,000.00 in any one 
accident, and for property damage occasioned to 
any pier, car, lighter, vessel, cargo or other prop- 
erty to an amount not less than $250,000.00 in any 
one accident arising out of any operations per- 
formed hereunder. 

(b) The Contractor shall be liable to the Gov- 
ernment for any loss or damage which may be 
sustained by the Grovernment as a result of the 
negligence or wrongful acts or omissions of the 
Contractor's officers, agents or employees or 
through fault of its equipment or gear, [195] 
subject, however, to the following limitations and 
conditions : 

(1) Contractor's liability to the Government 
shaU be limited to the sum of $250,000.00 for 
loss or damage in connection vdth any single 
catastrophe, accident or occurrence in the event 
that any such catastrophe, accident or occurrence 
and such loss or damage shall arise from or be in 
any way attributal)le to or connected with the 
presence or proximity of ammunition, explosives, 
gasoline or other inherently dangerous cargoes or 
the loading, discharging or handling of such cargo 
by the Contractor. 

(2) The Contractor shall not be responsible 
to the United States for any loss or damage re- 
sulting from any act or omission of any employee 
of the Government, or resulting from compliance 
by officers, agents, or employees of the Contractor 



with specific directions of the Port Director, NTS, 
12th Naval District. Nor shall the Contractor be 
so responsible for any such loss or damage result- 
ing from default of ships or other gear supplied 
by the Government. 
******* 

(4) Notwithstanding any other i)roA'ision of this 
contract, the Contractor agrees to waive any right 
of reimbursement for loss or damage of any kind 
or character which it may have against the Grov- 
ernment under any provision of this agreement if 
said loss or damage is covered by insurance and 
Contractor has collected or may collect for said 
[194] loss or damage from the insurance company. 
The Contractor further agrees to have attached to 
and made a part of all insurance policies issued 
pursuant to this agreement on operations there- 
mider a rider by the terms of which the insurance 
company agrees to waive any and all rights of 
subrogation which it may have against the United 
States by reason of any payment under said 
policy. 

The case of the libelants against the United States. 

The facts respecting the occurrence of the accident 
and the liability of the United States to the libelants, 
as distinct from the cause of the accident and the 
liability between the United States and appellee 
Arrow, are .substantially undisputed and may be sum- 
marized from the findings filed by the Court below. 
Williams and Mitchell, together with four other long- 
shoremen employed hy Arrow, were working on the 
Edgecombe at the level of the third deck in No. 4 



8 



port hatch;*' they came aboard about 7:00 a.m., at the 
begimiing of the day shift, and went below to the 
hatch's lower compartment for the purpose of unload- 
ing boxes of empty ammunition shells which com- 
pletely filled the compartment (Wms. R. 37, Mchl. 
R. 24). The port and starboard lower compartments 
of No. 4 each had a square hatch cover about eight 
feet wide, measured athwartship, by about fourteen 
feet long, measured fore and aft ; each of these covers 
weighed about 3500 pounds and was hinged on its 
inboard side along the center line of the vessel (Wms. 
R. 37-38, Mchl. R. 24-25). In order to provide a means 
of securing the hatch covers in the open or vertical 
position and preventing them from falling shut while 
cargo was being worked, two pawls or dogs, roughly 
in the shape of a hook, were fitted to hold the upper 
corners of each cover; one dog of each pair was at- 
tached to the forward bulkhead of the hatch, the other 
to the aft bulkhead; each dog swung on a shaft ex- 
tending in a fore and aft direction from the Imlkhead; 
when the cover was in the open or vertical position, 
each dog was intended to swing down upon the up- 
turned edge of the cover, so as to extend over and 
beyond the edge and down a few inches from the top, 
thereby gripping the edge and holding the cover from 
falling shut; for a locking device, to prevent the dog 
from raising and releasing its grip on the hatch cover, 
there was a hole in each dog through which a metal 



^It appears from the testimony generally that No. 4 hatch had a 
"trunk" or "well" somewhat "like an elevator shaft" from the 
weather deek to the level of the third deck, with no intervening 
cargo compartments until the hatch covers of these lower compart- 
ments were reached. 



locking pin was supposed to be inserted into a corres- 
ponding hole in the bulkhead ; these locking pins were 
supposed to be attached to the bulkhead near the holes 
b}^ means of chains (Wms. R. 38, Mchl. R. 25). The 
dogs and locking pins were at a height beyond the 
reach of persons standing on the deck and no con- 
venient means was provided for putting the dogs and 
locking ])ins in place to hold the hatch covers and it 
was the custom on the Edgecowhe and other Navy 
vessels for the Navy crew to open and secui*e the hatch 
covers at the request of the steA'edores (Wms. R. 40- 
41, Mchl. R. 27-28). 

When Arrow's day gang began work on No. 4 hatch, 
both hatch covers were already raised and standing in 
a vertical position upon their hinges; Williams, 
Mitchell and another member of the gang stood on top 
of the cargo ready to commence work and a cargo 
board was lowered to them ; the cargo board was care- 
fully lowered through the hatch by means of falls 
from a winch and booms and neither it nor the falls 
struck the hatch cover ; after the cargo board had come 
to rest on top of the cargo, the hatch cover suddenly 
fell shut and before Williams and Mitchell could jump 
aside they were crushed (Wms. R. 37-38, Mchl. R. 25). 

The Court ])elow found as factual conclusions that 
at the time of the accident the vessel was ''in the 
control of the United States Navy" which was negli- 
gent ''in not taking proper and reasonable precautions 
to secure said hatch cover so it would not fall" and 
that the fall of the hatch cover and the injury and 
death resulting therefrom were the consequence of 



10 

the defective and unseaworthy condition of the vessel 
(Wms. R. 41, 42, Mchl. R. 27, 28). As conchisions of 
law the Court stated that the vessel was unseaworthy, 
that the United States was negligent, while libelant 
Williams and libelant's decedent Mitchell were not 
negligent (Wms. R. 48, Mchl. R. 33-34). It assessed 
damages at $9259.50 in Williams' case (Wms. R. 49) 
and at $18,000.00 in Mitchell's case (MchL R. 34). 

The testimony in the Government's case against Arrow. 

The foregoing facts, as found b}^ the Court below, 
establish the liability of the United States to the libel- 
ants for breach of its non-delegable duties as operator 
of the USS Edgecomhe to furnish a seaworthy vessel 
and to exercise due care to provide a safe place of 
employment for the longshoremen working aboard 
regardless of whether the employees of the United 
States or those of appellee Arrow, its stevedoring 
contractor, were responsible for the negligent manner 
in which the hatch that fell and injured libelants was 
opened without being properly fastened and secured. 
Accordingly, the United States does not deny liability 
to libelants as found by the Court below and does not 
prosecute an appeal as against them.^ But in respect 



•^Because the decree in favor of Williams contains! a declaration 
of lien thereon in favor of Arrow to the extent of $1,855.49 on 
account of compensation payments (Wms. R. 60), an appeal was 
originally taken as to libelant Williams as well as Arrow. This 
was later dismissed in the hope that connsel wonld stipulate to 
permit payment to Williams of the net amount to which he is 
beneficially entitled with reservation of the rights of Arrow and 
the United States infersesr pending the outcome of this appeal. 
Connsel have refused so to stipulate, however, and continue to 
prevent the United States from paying Williams. 



11 



of the question of whose employees proximately caused 
the place of employment to be unsafe, the findings and 
conclusions of the Court below are contested on this 
appeal and, accordingly, the testimony on that point 
will be summarized for the convenience of the Court. 

In the Williams case testimony concerning the 
opening of the hatches was given by Claude Bowers, 
Arrow's night walking boss, who was ship supervisor 
for the stevedores when the hatches were opened; liy 
Alf Larsen, Arrow's day hatch boss, who had charge 
of the stevedore gang at No. 4 hatch when the accident 
occurred; and by Herbert Carnes, boatswain's mate, 
second class, on the Edgecomhe, who had charge of 
No. 4 hatch. In the Williams case it was stipulated 
that the Court should consider the transcript of tes- 
timony taken in the Williams case and hear certain 
further testimony. This additional testimony was that 
of Martin O'Shea, Arrow's day walking boss, who was 
ship supervisor for the stevedores at the time of the 
accident, Claude Bowers, Arrow's night walking boss, 
who was recalled to give further testimony, and Kasi- 
mir Anzulovich and Joseph Kokicks, Arrow's em- 
ployees who actually opened the No. 4 ])ort hatch 
cover. 

Claude Botvers, Arrow's iii(/ht walkinfj boss, was 
called as a witness for the Government in the Williams 
case (Wms. R. 276-305). He testified that he had 
been a stevedore for twenty-five years and the night 
of May 27-28, 1945, preceding the accident, was ship 
supervisor for the stevedores on the T'^'SS Edgecombe 
(276, 278). j>u\vers had charge of the various fore- 



12 



men or hatch bosses arcl their gangs working that ship 
(277, 287, 293). The night shift was from 7:00 p.m. 
mitil 6:00 a.m. and the da.y shift from 7:00 a.m. to 
6:00 p. m. (278). In tlie course of his duty as walking 
boss he remained during the hour between the gang 
change to supervise and to show the day walking boss 
what was being done (278, 287). 

When Bowers began the night shift, the gang work- 
ing No. 4 hatch were just starting to unload the empty 
shell cases which w^ere in the trunk or well of the 
hatch which extended like an elevator shaft from the 
top deck to the hatch covers of the lower compartment 
at the bottom (278-280, 288). 

About midnight. Bowers testified, he spoke to the 
officer of the desk, asking him "to rig the gear for 
the offshore [or i^ort] tank because the cover was not 
in proper position" (281, 283, 290-291). The officer 
refused on the ground that he did not have enough 
men available until morning (283-284, 291). Bowers 
and the officer ultimately agreed that the stevedores 
would work only the starboard or inshore hatch and 
the port hatch would be rigged sometime during the 
morning when ship's personnel were available (284, 
304). The work of unloading the trunk of the hatch 
continued until about 2:00 a.m., when it was finally 
clear and the hatch covers of the lower compartments 
exposed (280-281). 

When the covers were exposed. Bowers said, he 
had the hatch boss and his gang open the hatch cov- 
ers in his own presence and under his direction (285, 
293-294, 299). They followed the usual practice and 



13 

opened the starboard and port covers at the same 
time, beginning with the port side (292, 294, 301). 
They hauled up the covers with the ship's gear and, 
by means of one man lifting up another, put the dogs 
or hooks do^\^l over the covers (294, 301-302). 

The port cover, Bowers testified, looked to be in a 
safe condition (294-295, 297). But in fact the lock- 
ing i^ins were not fitted into place because the pin 
for the forward hook was bent, while the pin for the 
after dog was not found (296, 302-303). Bowers tes- 
tified categorically, "That is why we didn't work 
in the hatch" (296). 

Bowers testified he did not report this condition 
of the hatch cover to the officer of the deck (296). 
In any case, he stated, with the ship's gear rigged as 
it was, it would have been dangerous to work the port 
hatch and, knowing this, the night gang did no work 
there (296-297). The ship's gear was already rigged 
in proper shape for them to work the starboard or 
inshore hatch safely (284-285). The stevedores con- 
tinued to work the starboard hatch throughout the 
night, l)ut there was still cargo in that hatch when 
they finished the shift (284-285, 288, 291-292). 

When the night gang quit and the day gang started 
work, the port hatch cover. Bowers testified, was still 
open (286-287). No cargo was removed from the port 
side and when the night gang left, that hatch was 
still completely full (288-289, 304). 

Alf Larsen, Arrow's day hatch hoss, was called as 
a witness by the libelant in the Williams case (Wms. 



14 



R. 155-186). He testified that he had been a steve- 
dore since 1906 and on the day of the accident was 
foreman of a gang of sixteen men (156). He and his 
gang had been working on the Edgecombe for about 
two days before that morning, but they had not 
worked No. 4 hatch (157). About 4:00 p.m., the day 
before the accident, while working in the vicinity 
of No. 5 hatch, one of the ship's petty officers asked 
Larsen if No. 4 hatch was to be worked that night 
(159-160, 161, 162). He replied, ''I suppose they will, 
but you had better go and see the walking boss" (163). 

When Larsen came aboard the morning of the acci- 
dent, he said, he went up on the top deck ; No. 4 hatch 
was opened up and he ''looked down in the hatch 
and everything seemed safe to me" (163, 164). There 
was no cargo in the trunk of the hatch ])etween the 
top deck and the covers of the lower compartment 
which was open, but on the port side no cargo had 
been removed and it was filled to within six or eight 
inches of the top with empty shells (165-166). His 
men did not raise the cover; it was already up when 
they got there (168). 

When he and his gang began work at 7:00 a.m., 
six men went below deck, Larsen testified, while three 
men and himself stayed on deck and the rest of the 
gang were on the dock (156). A four-by-six-foot 
cargo scow was carefully lowered into the port hatch, 
which was about eight to ten feet wide by about 
twelve feet long, without striking anything; it came 
to rest on the edge of the hatch (166). 



15 



Larsen was on the top deck in the after end of 
the hatch and a few minutes after the scow was let 
down, he saw the hook on the forward end of the 
hatch cover slip and work up and down (167-168). 
He yelled, "I^ook out," but the cover took only sec- 
onds to fall; three men jumped clear but three were 
caught underneath (168-169). After the cover was 
raised again and the two covers lashed together, Lar- 
sen testified, he looked at the after hook and saw it 
was bent (169-170). He did not examine the locking 
pins of the dogs and did not know their condition 
or whether there was a pin for the forward hook or 
dog (179-183). 

Larsen testified that in his opinion the bent hook 
could not hold the cover; ''as a rule you secure the 
two tank tops together" (171). The cover itself was 
in good condition; ''there was nothing defective about 
the cover; whether the fastening was defective or 
there was carelessness" he did not know (173). He 
admitted on cross-examination that when he sent his 
gang dowii the hatch he did not know whether or 
not there was anything holding the hatch cover except 
the one forward hook and did not know whether it 
had any locking device (185-186, 183, 185). 

Herbert Carnes, boatswain's mate, second class, in 
charge of No. 4 hatch on the USS Edgecombe, was 
called as a witness for the Government in the Wil- 
liams case (Wms. R. 205-275). He testified that he 
had eight men under him and was in complete charge 
of all men and all work in the area of No. 4 hatch 
as far as concerned the activities of the Navy crew 



16 



in rigging and moving booms, changing cargo gear 
and checking all rigging for working cargo (209, 208, 
222). He was on duty the day of the accident and 
no other non-commissioned officer had any authority 
over men working around No. 4 hatch so long as he 
was aboard and no orders from any superior officer 
concerning opening the hatch could be given except 
by going through him (209, 215, 264). 

About 4:00 or 4:30 p.m., Carnes testified, he either 
learned for himself or was told by the Chief Petty 
Officer to take the hatch cover off No. 4 hatch on 
the top deck (212-213). Before their quitting time 
for the day, Carnes and his men had imcovered the 
hatch on the upper deck and raised the booms so the 
stevedores could miload the cargo stowed in the top 
of the hatch (213, 218). Before he knocked off his 
men he went to check with the stevedore boss about 
whether they wanted him to have his crew open the 
lower hatch when the stevedores finished getting out 
the cargo on top of the lower hatches (209-210, 
213-214). 

Carnes spoke to a stevedore who, he said, appeared 
to be a foreman and acted and was dressed ^'like one 
of the boss men around there" (209-210, 214). Carnes 
testified that he asked if he could keep the Navy crew 
"on deck" so that when the stevedores "finished un- 
loading the cargo that was in the hatch we could 
open the hatch on the lower deck," but that the man 
said no, "that they would get to it when they got 
the cargo unloaded" (217-218, 221). Carnes had half 
his crew sleeping aboard and available to be turned 



17 



out if there was any rigging which had to be done 
during the night (249-250). 

After he had knocked off his men, Carnes said, he 
went to dinner and about 9:00 p.m. went up to a small 
room or locker near No. 4 hatch where he slept, wak- 
ing off and on through the night and hearing cargo 
being worked in the starboard side of No. 4 hatch 
(219-220, 227). About 6:30 the next morning Carnes 
had In-eakfast, returned to the locker around 7:00, 
and shortly after heard the hatch cover fall (227-228). 
He started below and met the ship's commander who 
told him to get the hatch open as soon as possible 
(228). When Carnes got down to the lower hatch, 
the cover was just being lifted by the stevedores and 
he went back up (239, 2,59). 

When he got back up on the main deck, Carnes 
found the stevedores had already opened the hatch; 
he saw that they had the forward hook or dog on 
the hatch covei', but the after dog was not down over 
the edge of the cover (228, 261). Carnes therefore 
sent one of his men down to put the pin in the for- 
ward hook and put the after dog on the cover (228). 
While the man was down there putting the pin in 
the forward dog, the ship's executive officer looked 
down and called out to put a turnbuckle from one 
cover to the other (229). 

There were turnbuckles and rigging right by the 
covers, Carnes said, for the man to put on the turn- 
buckle (229). Meanwhile Carnes had another of his 
men take the winch and put a slight strain on the 



18 



cover and the man below then put the aft dog over, 
put the pin through it and then came back topside 
(229, 260-262). Carnes was present when the hatch 
cover was raised after the accident and later when 
it was closed; he had l^een present when the cargo 
of empty shells which was being discharged had been 
loaded and the hatches closed; at all these times both 
dogs and l3oth locking pins were there in place and 
the cover was not warped or distorted (234-237). 

Martin O'Sliea, Arroiv's day walking boss, was 
called by the Government at the trial of the Mitchell 
case for the purpose of corroborating the testimony 
in the Williams case (Mchl. R. 98-107). He testified 
that as day walking boss he usually got down about 
6:15 a.m.; the night walking boss would show him 
around, tell him about what hatch was being worked, 
then when the day gang comes on, at 7:00 a.m., he 
calls them in (104). 

When he came on the job the morning of the acci- 
dent, O'Shea testified, he saw Bowers, the night walk- 
ing boss; Bowers did not say a word about the No. 4 
hatch where the accident later happened (98-99). 
O'Shea looked in No. 4, saw the ''side ports" or 
lower hatch covers were up, ''and I presumed it was 
safe to work" because (99) — 

"Well, you understand, any time those things is 
lifted uj) they are supposed to be safe. Otherwise 
they won't be up. They are supposed to be se- 
cured. ' ' 

O'Shea made no j^ersonal examination of the hatch 
cover to see whether it was safe and Bowers didn't 



19 



say anything about its not being safe nor that he had 
opened it during the night (100). He made no per- 
sonal examination, O'Shea said, because (101), 

"They worked in that hatch all night, so why 
should I make an examination'? It was up. The 
port side was up already. * * * It is always safe 
when it is up and it is secured. The Navy never 
opens those things up unless they make it secure 
and safe." 

Although he didn't know whether the Navy opened 
it, O'Shea testified, he ''presumed they opened it"; 
it was oi)en in the morning when he came on (101). 
In not inspecting, he relied upon what is proper 
stevedoring practice, that the hatches being raised 
had been secured by whoever raised them (106). 
O'Shea explained, "When they are up they're se- 
cured, they are supposed to be able to work them 
without any danger to anybody" and he relied on 
that (102-103). 

Claude Bowel's, Arrotv's night walking boss, who 
had already testified in the Williams case, was called 
a second time by the Government to testify in the 
Mitcliell case. Bowers reiterated that as night walk- 
ing boss, in order to communicate to the day shift the 
condition of the work, he was required to be on the 
ship before and after the night shift men who worked 
from 7:00 p.m. to 6:00 a.m. (45-47). 

Bowers stated that when the day shift came on 
the morning of the accident he reported to O'Shea, 
the day walking boss, that the holding device for the 
hatch cover was defective; he said (55-56), "I told 



20 



him that the pin was sprung on the top, and they 
would have to see the Navy to get that fixed before 
they started operating in that hatch." 

His conversation with O'Shea about the condition 
of the hooks and pins of No. 4 xjort hatch cover took 
place, Bowers said, ''about twenty minutes after six, 
I guess, on that hatch" (56). Bowers testified (81), 
"I told him one of them was sprung; he couldn't get 
it in place properly." He also told O'Shea that the 
other pin was missing (81). 

Bowers confirmed his testimony in the Williams 
case that although the port hatch cover appeared safe 
when looked at from the top deck, when looked at 
from the deck below it could be seen that the cover 
was actually not safe because the hook or dog was 
bent and the pins were not there (56, 57, 58, 62, 67, 
86). It appeared safe, he said, "If you just looked 
at it" (71). But he "wouldn't go in there until it 
was fixed" (76). After the accident, when the hatch 
covers were lashed together, the stevedores paid no 
further attention to the dogs or hooks and he could 
not state whether they were fixed or not (73, 76). 

Bowers stated he was given no instructions as to 
how to secure the hatch doors (59). His men just 
pulled them open with the ship's gear and put the 
hooks over the covers by one man lifting another 
up so that he could reach it (62-63). His men opened 
the hatch about 1 :30 a.m., at which time one of the 
hooks or dogs, which hold the open cover in place 
on the port side, was sprung and one of the locking 
pins was bent, while the other was not found (48-49). 



21 



Bowers testified that they raised both port and star- 
board covers at the same time but didn't work the 
jjort side l^ecause the cargo gear was not trimmed 
right. (53). The condition of the hooks and pins on the 
port cover was called to his attention right away (50). 

Bowers changed his testimony from that given at 
the Williams trial as to whether he told the officer 
of the deck about the hooks on the port hatch cover. 
When he went to the officer of the deck about rigging 
the booms so both sides of the hatch could be worked, 
Bowers said he also reported the condition of the 
bent dog and pin (55, 59). The officer said he would 
have it fixed in the morning as soon as he had the 
men available; '^he didn't say what time, as soon as 
he had the men available" (55, 59). 

Bowers stated that he told the officer of the deck 
that he would leave the port side hatch altogether 
and work on the other side; the officer responded, 
"All right" (59). Thereafter the stevedores continued 
to work on the other side and did not work on the 
port side (55). 

Kasimir Anzulovich and Joseph Kokicks, Arrow's 
employees who opened the lotrer hatch covers, were 
also called in the Mitchell case (Mchl. R. 89-97) to 
corroborate the testimony already taken in the Wil- 
liams case. Both men testified that they had worked 
on the night shift as members of the gang which 
opened No. 4 lower hatch on the Edgecombe (89-90, 
93-94). 

Anzulovich stated that he saw no Navy personnel 
around; he saw the two hooks to fasten the covers 



22 



open, but saw no locking pins; he lifted up another 
stevedore and the latter dropped the hooks down over 
the hatch covers (90, 92). The stevedores worked in 
cargo on the port side of the lower hatch, but when 
they left the ship at the end of the shift both hatch 
doors were still standing open the same way as when 
they opened them (92-93). He saw no Navy per- 
sonnel around at any time while he was working there 
(93). When he came to work the evening after the 
accident the hatch covers were lashed together (91). 
He said if that had been done before there would 
have been no accident (92-93) — 

"I don't know who was supposed to do it. If I 
was a foreman I would do it myself, even if the 
Navy wasn't there, for safety first." 

Kokicks testified that sometime after midnight he 
and the rest of the gang "hooked on the winches" and 
lifted the doors (94). When raised and open they 
were fastened by a big dog over the edge of the cover 
(94). He did not see any locking pins although he 
put the hooks on himself, "Just slapped them on" 
(95). 

The Court's findings and decision in the Government's case 
against Arrow. 

In neither case did the District Judge himself make 
findings of fact and conclusions of law. In each case 
the findings and conclusions proposed by successful 
counsel were adopted ])odily by the Court (Wms. R. 
36-49, Mchl. R. 23^4). Indeed, in the Mitchell case 
they appear in the record Avith the caption "Im- 



23 



pleaded Respondent's Proposed Findings of Fact and 
Conclusions of Law and Decree" (Mchl. R. 23). 

These findings signed ])y tlie Court may be con- 
densed as follows: Arrow neither knew nor had reason 
to expect the defective condition which existed in the 
hooks and locking pins for the hatch cover; it was 
the custom and duty of the Na^y crew to open and 
fasten the hatch cover and the Navy crew opened, 
raised and secured the hatch cover and ''failed to use 
reasonable care in fastening said hatch cover, and 
failed to fasten it securely and safely so as to prevent 
its falling" (Wms. R. 40, fng. 14, 41, fng. 17, 42, fng. 
22; Mchl. R. 24, fng. 6, 28-29; fng. 16, 21). Arrow 
was not guilty of any negligence proximately causing 
or contributing to the accident, the injuries and dam- 
age "resulted from default of ship and gear supplied 
by the respondent United States" (Wms. R. 45-46, 
Mchl R. 30, 32). 

The Court concluded as a matter of law (Wms. R. 
48-49, Mchl. R. 33-34) that the respondent-impleaded 
Arrow was not negligent (Wms. Concl. 5, Mchl. Concl. 
5) and that "The fall of the hatch cover and the libel- 
ant's [decedent's] injuries were proximately caused 
by the defective and unseawoi-thy condition of said 
vessel in respect to the means for securing said hatch 
cover and by the negligence of the United States" 
(Wms. Concl. 6, Mchl. Concl. 6). Decrees were ac- 
cordingly entered in each case dismissing on the merits 
the Government's impleading petitions against Arrow. 
This appeal followed. 



24 

SPECIFICATION OF ERROR. 
The District Court erred: 

1. In holdino- that appellee Arrow Stevedoring; 
Comj^any and its employees were not negligent. 

2. In failing to hold that the employees of appellee 
Arrow Stevedoring Company were negligent. 

3. In holding that the fall of the hatch cover and 
the injuries resulting therefrom were proximately 
caused by the negligence of the United States. 

4. In failing to hold that the negligence of ap- 
pellee Arrow Stevedoring Company and its employees 
was the proximate cause of the falling of the hatch 
cover and the injuries resulting therefrom. 

5. In holding that appellee Arrow Stevedoring 
Company is not liable to the United States for any 
part of the loss or damage. 

6. In failing to hold that the United States is 
entitled to recoverj^-over against Arrow Stevedoring 
Company for the loss or damage. 

7. In dismissing the impleading petitions of the 
United States against Arrow Stevedoring Company. 



25 

ARGUMENT. 
I. 

THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLI- 
GENCE OF ARROW IN SENDING ITS MEN TO WORK UNDER- 
NEATH AN INSUFFICIENTLY SECURED HATCH COVER. 

The review of the testimony coiicerniiia,' the opening; 
of the hatch covers {supra pp. 8-9) shows conclu- 
sively that Arrow's night shift stevedores opened No. 
4 lower liatch cover on ])oth the port and starboard 
sides and that they were fully aware that they had not 
])een able to secure it safely in the open position so 
as to insure that it would not fall and injure any men 
Avho might work iDeneath it. While the testimony con- 
flicts as to whether Arrow's night walking boss re- 
ported the condition to the day walking boss who 
relieved him, there is no doul^t as to the knowledge 
and responsibility of Arrow. Similarly, it is unim- 
portant whether Arrow's night walking boss did not 
report to t]ie Navy lieutenant who was officer of the 
deck the dangerous condition in which the stevedores 
left the open hatch cover or whether he did make such 
a report. The testimony is plain that if he did so 
report it, he further reached an understanding with 
the officer of the deck that the stevedores would work 
only in the starboard hatch and that no work would 
l)e done in the port hatch, where the injury occurred, 
until after the dangerous condition had been corrected 
sometime during the follomng morning. In these 
circumstances, it appears indisputably from the rec- 
ord that Arrow's employees had complete charge of 
the hatch, with full knowledge of the dangerous con- 
dition complained of, and had assured the ship's per- 



26 



sonnel that no work involving exposing the stevedores 
to the dangerous condition would be done. It is thus 
plain that the sole proximate cause of the falling of 
the hatch cover and the resulting injury and death 
was the negligence of Arrow's foremen in permitting 
the stevedores to work in the lowxr No. 4 port hatch 
after having agreed with the ship's officers that they 
would not do so. 

1. The findings of negligence signed by the District Court are 
clearly erroneous and should be disregarded. 

In the cases now at bar the judges who heard the 
evidence did not themselves make findings of fact and 
conclusions of law as required by Admiralty Rule 
46%. The indefinite and argumentative documents 
which appear in the record as findings and conclu- 
sions are the work of counsel successful in the District 
Court. It is clear from a comparison of the findings 
as signed at counsel's request in the Williams case 
(Wms. R. 36-49) with the requested modifications by 
the Government (Wms. R. 49-59) that the trial judge 
omitted to exercise his independent judgment in any 
respect whatsoever. Indeed, in the Mitchell case the 
findings and conclusions appear in the record (Mchl. 
R. 23-34) with the heading, "Impleaded Respondent's 
Proposed Findings of Fact and Conclusions of Law 
and Decree." 

It is elementary that where the trial judge does not 
make tiiidings of his own, using the proposals of coun- 
sel for both parties as a guide to assist him in reaching 
his own decision, Imt merely accepts the findings 



27 



prepared by successful couusol, the Appellate Court 
should not treat such ]Hirported findings as entitled 
to the weight given findings made by the trial judge 
liimself. E.g. The Severance, (4th Cir., 1945) 152 F. 
(2d) 916, 918, collecting cases. 

Moreover, findings concerning negligence such as 
are here in question are nut findings of fact in the 
true sense so as to ]:>e binding unless clearly erroneous. 
The}^ are mere factual conclusions respecting a stand- 
ard of conduct and are reviewable as a matter of law. 
Great AtJantic d' Pacific Tea Co. v. Brasileiro, (2d 
Cir., 1947) 159 F. (2d) 661, 665; Hutchinson v. Dickie, 
(6th Cir., 1947) 162 F. (2d) 103, 106; see Johnson v. 
Kosmos Portland Cem,ent Co., (6th Cir., 1933)- 64 iF. 
(2d) 193, 195. 

But in any event we believe that, as shown here- 
after, the i)urpo]'ted findings found in the records now 
at bar are clearly erroneous and contrary to the evi- 
dence insofar as they purport to hold that the em- 
ployees of Arrow were free from any negligence which 
caused tlie injury of Williams and Mitchell, but that, 
instead, it was the United States which was negligent. 

2. Arrow was negligent in sending its men to work under the 
hatch cover when it had knowledge of the dangerous con- 
dition prevailing. 

The testimony on the Williams trial establishes be- 
yond any shadow of doubt that Bowers, Arrow's night 
walking ])oss, and his men who opened No. 4 lower 
hatch, knew that the port hatch cover had not been 
safely secured by the stevedores. In such circum- 



28 

stances it was Bowers' duty to explain and point out 
the dangerous condition of the cover to the day walk- 
ing boss who relieved him. 

Indeed, as night walking boss, Bowers was required 
to remain during the hour between 6 :00 and 7 :00 a.m. 
for this very purpose. The silence of the record of 
the Williams trial as to whether or not Bowers did 
in fact point out the dangerous condition to O'Shea, 
Arrow's day walking boss, is entirely immaterial in- 
sofar as regards Arrow's responsibility. Arrow is 
charged Avith Bowers' knowledge and his failure to 
report the situation to O'Shea does not excuse Arrow. 

For the same reason the conflict in the additional 
testimony received at the Mitchell trial cannot affect 
the result. That Bowers testified that he had told 
O'Shea about the dangerous condition of No. 4 port 
hatch cover, while O'Shea testified that Bowers had 
not, cannot alter the fact that Arrow is responsible 
for the knowledge which it gained through Bowers, 
its night walking boss, even though he failed in the 
performance of his duty to Arrow in communicating 
such knowledge to O'Shea, its day walking boss. 

It seems plain, moreover, that even if Bowers' testi- 
mony is totally disregarded, still the testimony of 
Arrow's day gang boss Larsen at the Williams trial 
and Arrow's day walking boss O'Shea at the Mitchell 
trial is plain that Arrow is chargeable with their negli- 
gence in failing to make any inspection whatsoever 
with a view to ascertaining whether or not the hatch 
cover was in a safe condition before they sent their 
men to work beneath it. 



29 



It is well established that the stevedore contractor 
owes a duty to inspect the ship's appliances in order 
to ascertain whether or not they are in safe condition 
for the stevedores to make use of them. Vanderlinden 
V. Lorentzen, (2d Cir., 1944) 139 F. (2d) 995; Gnllo 
V. Royal Norwegian Government, (2d Cir., 1943) 139 
F. (2d) 237; The Thofnos P. Beal, (W. D. Wash., 
1924) 295 Fed. 877, 880; The Jethou, (D. Ore., 1924) 
2 F. (2d) 286. And Arrow assumed an obligation to 
the United States to perform that duty hy reason of 
its contractual undertaking to load and unload the 
vessel in a proper and workmanlike manner. 

3. The United States was entitled to rely on Arrow's perform- 
ing' its duty not to expose its employees to known dang^erous 
conditions on the ship. 

The evidence is plain that the United States was so 
situated as to be entitled to rely on Arrow's perform- 
ance of its duty to protect its men. This is so whether 
we accept Bowers' testimony at the Williams trial that 
he did not advise the officer of the deck of the fact that 
Arrow's men had been unable to safely secure No. 
4 port hatch cover, or accept his testimony at the 
Mitchell trial that he did tell the officer of the deck 
of the unsafe condition l>ut agreed with the latter that 
the stevedores would do no work in the port hatch 
until the ship's gear could be re-rigged and the cover 
properly secured sometime next morning. 

In either event the United States had no reason to 
believe that Arrow would thus needlessly expose its 
men to a known danger. It was entitled to assume 
that once Arrow knew of the dangerous condition 



30 



existing, it would not allow its men to work where 
they were exposed to the danger of the hatch cover 
falling until there was reason to l)elieve that the ship 's 
personnel had corrected the condition of the cover so 
that the danger no longer existed. As this Court 
observed in Seaboard Stevedoring Corp. v. Sagadahoc 
SS. Co., (9th Cir., 1929) 32 F. (2d) 886, 887, "We 
are aware of no rule under which the ship's officers 
should be required for appellant's [stevedore's] benefit 
to exercise a high degree of vigilance to see that it 
performs a plain duty." As the Court observed in 
Cornec v. Baltimore S O. RR. Co., (4th Cir., 1931) 
48 F. (2d) 497, 502, the stevedore owes to the vessel 
and her owners the duty of